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Series  xxxvil  No.  2 

JOHNS  HOPKINS  UNIVERSITY  STUDIES 

IN 

Historical  and  Political  Science 

Under  the  Direction  of  the 

Departments  of  History,  Political  Economy,  and 
Political  Science 


THE   LABOR  LAW  OF  MARYLAND 


BY 


MALCOLM  H.  LAUCHHEIMER,  PH.D. 
First  Lieutenant,  Judge  Advocate,  A.  E.  F. 


BALTIMORE 

THE  JOHNS   HOPKINS  PRESS 

1919 


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THE   LABOR  LAW  OF  MARYLAND 


Series  xxxvii  No.  2 

JOHNS  HOPKINS  UNIVERSITY  STUDIES 

IN 

Historical  and  Political  Science 

Under  the  Direction  of  the 

Departments  of  History,  Political  Economy,  and 
Political  Science 


THE   LABOR  LAW  OF  MARYLAND 


BY 


MALCOLM  H.  LAUCHHEIMER,  PH.D. 
First  Lieutenant,  Judge  Advocate,  A.  E.  F. 


BALTIMORE 

THE  JOHNS  HOPKINS  PRESS 

19x9 


Copyright  1919  by 
THE  JOHNS  HOPKINS  PRESS 


PRESS  OF 

THE  NEW  ERA  PRINTING  COMPANY 

LANCASTER.  PA. 


7^35" 


CONTENTS 

Pags 

PREFACE vii 

CHAPTER  I.    Introduction  9 

The  Problem  of  the  Labor  Law  9 

Maryland  Conditions   '6 

CHAPTER  n.    The  Labor  Union  19 

The  Law  of  Union  Activities  *9 

Statutes  Relating  to  Unionism  39 

CHAPTER  in.    The  Workmen's  Compensation  Law 46 

History 46 

The  Present  Law  as  Social  Legislation  5  ^ 

The  Constitutionality  of  the  Law  7° 

CHAPTER  IV.    The  Conditions  of  Employment  76 

Regulation  by  Commission    77 

Fire  Protection ^* 

Protective  Devices ^5 

Sanitation    86 

The  Tenement  Law  9° 

CHAPTER  V.    The  Terms  of  Employment  94 

Foreword    94 

Prohibitions  of  EmplojTnent  96 

Hours    100 

Wages 104 

CHAPTER  VL    Some  Miscellaneous  Laws  "3 

Licenses    .  .* ^ *3 

Attachments  and  Liens  "^ 

Child  Welfare   "7 

State  Employment  ^^9 

CHAPTER  Vn.    The  Administrative  System  122 

State  Board  of  Labor  and  Statistics '23 

State  Board  of  Health   ^3S 

Minor  Administrative  Agencies  '35 

Suggestions  for  Reform  '3° 

CHAPTER  VIII.    The  State  in  Relation  to  Labor MS 

V 


N 


G9Gi30 

INST.  INBUS.  KBL. 


PREFACE 

This  monograph  needs  little  preface.  The  method  of 
study  is  local  and  intensive,  but  I  have  endeavored  to  draw 
some  general  conclusions  from  the  specific  subject-matter 
treated.  The  book,  as  its  title  implies,  is  neither  a  text 
book  nor  a  reference  book,  though  it  may  serve  to  a  slight 
degree  in  the  latter  capacity,  but  a  dissertation. 

I  take  this  means  of  expressing  my  gratitude  to  Prof. 
W.  W.  Willoughby,  who  served  as  my  inspiration  and 
rendered  me  much  assistance  in  the  preparation  of  this 
monograph,  and  also  to  Prof.  George  E.  Barnett  and  to 
Miss  Anna  Herkner,  former  Assistant-Chief  of  the  Mary- 
land Bureau  of  Statistics.  Various  others  to  whom  I  am 
indebted  are  mentioned  throughout  the  text. 

The  monograph  was  completed  towards  the  end  of  1916 
and,  because  of  the  author's  participation  in  the  war,  it  has 
been  impossible  to  bring  it  up  to  date  in  many  particulars. 

M.  H.  L. 


Til 


THE  LABOR  LAW  OF  MARYLAND 


CHAPTER  I 

Introduction 

The  Problem  of  the  Labor  Law. — The  labor  law  of  a 
state  is  a  peculiar  combination  of  unwritten  and  statute 
law.  It  differs  from  most  law  in  that  it  is  not  merely  an 
evolution  of  the  customary  law  of  a  community,  but  is  a 
definite  attempt  by  the  community  to  solve,  now  by  the 
common  law,  now  by  statute,  an  acute  social  problem.  It 
does  to  a  degree  reflect  the  customary  morality  of  the  com- 
munity, but  this  not  unconsciously,  as,  for  example,  in  the 
case  of  commercial  law,  but  as  a  conscious  adoption  of  an 
ethical  principle  for  a  political  norm.  A  complete  under- 
standing of  labor  law  requires,  therefore,  not  merely  a 
delving  into  jurisprudence,  but  also  into  political  the- 
ory. We  must  study,  not  merely  the  law  itself,  but  the 
law  as  an  expression  of  the  relation  of  the  state  to  its  citi- 
zens; the  labor  law  in  truth  is  one  of  the  most  interesting 
media  in  which  to  study  the  extent  to  which  the  state  can 
justify  its  interference  in  the  private  life  of  individuals. 
Accordingly,  although  this  study  will  be  primarily  a  critical 
analysis  and  description  of  actual  laws  in  practical  opera- 
tion, there  will  necessarily  be  in  it  an  undercurrent  of  specu- 
lative political  theory. 

The  state,  then,  in  its  labor  law  sets  out  to  solve  a  very 
definite  social  problem,  the  problem  of  industrial  unrest, 
the  problem  of  reconciling  and  placating  labor  and  capital. 
The  history  of  this  activity  of  the  state  stretches  back  six 
or  seven  centuries,  and  the  policy  of  the  state  has  varied 
from  complete  aloofness  to  intimate  intervention. 

9 


10  THE   LABOR  LAW   OF   MARYLAND  [156 

Logically  and  perhaps  historically  the  first  instrumental- 
ity made  use  of  by  the  state  in  meeting  the  labor  problem 
is  the  common  law.  This  results,  not  from  an  active  in- 
tent on  the  part  of  the  state  to  solve  any  problem,  but  from 
a  quiescent  attitude  towards  an  unimportant  phenomenon. 
The  common  law  is  turned  to  before  the  labor  problem 
assumes  any  special  characteristics  of  its  own,  and  the 
various  cases  are  settled  according  to  the  general  principles 
of  the  common  law  as  laid  down  in  cases  between  individ- 
uals who  are  in  no  special  relation  to  each  other.  If,  in  the 
beginning,  as  is  usually  the  case,  no  economic  question 
obtrudes  into  the  case,  but  the  matter  is  one  of  pure  law, 
the  decision  based  on  former  precedents  will  work  substan- 
tial justice.  When,  on  the  other  hand,  the  relative  economic 
position  of  the  two  parties  is  of  importance,  decisions  based 
on  pure  law  will  not  be  adequate  and  will  often  entirely 
fail  to  settle  the  question  at  bar.  When,  as  always  hap- 
pens, the  economic  status  of  the  parties  does  not  merit 
attention  until  after  the  deciding  of  cases  involving  similar 
matters,  but  not  calling  into  question  the  economic  relation, 
it  is  practically  impossible  for  the  judges  when  the  economic 
question  is  presented  to  them  to  disregard  the  precedents 
and  to  dispense  economic  justice  and  not  justice  according 
to  law.  Common  law  does,  as  is  often  said,  progress  and 
grow  with  the  times,  but  more  often  legislation  is  necessary 
to  make  it  entirely  adequate.  Thus  the  common  law  of 
negligence  did  not  meet  the  requirements  of  industrial 
accidents,  and  employers'  liability  and  compensation  laws 
were  the  result.  Thus  the  common  law  of  individual  bar- 
gaining and  competition  does  not  seem  to  meet  the  require- 
ments of  collective  bargaining,  and  legislation  recognizing 
the  validity  of  unionism  is  being  demanded. 

A  more  serious  inadequacy  of  the  common  law,  how- 
ever, as  a  means  of  solving  the  labor  problem  arises  from 
the  inherent  characteristic  of  that  law  as  a  system  of  juris- 
prudence. The  common  law  is  remedial,  compensatory; 
labor  conditions  call  for  regulation,  prohibition.    The  com- 


157]  INTRODUCTION  II 

mon  law  seeks  to  relieve  the  sting  of  a  wrong  after  it  has 
been  committed ;  labor  conditions  necessitate  regulations 
making  impossible  the  commission  of  the  wrong.  A  close 
scrutiny  of  the  entire  field  of  the  common  law  will  reveal 
no  principles  which  could  support  such  movements  as  the 
"  safety  first "  and  "  living  wage "  propagandas.  Even 
equity  with  its  canons  of  preventive  relief  against  irrepara- 
ble injuries  does  not  furnish  a  proper  foundation  for  the 
state  control  of  labor  conditions.  Thus,  though  the  state 
could  and  does  depend  to  a  great  degree  upon  its  unwritten 
law  in  solving  the  economic  problem  of  labor  and  capital, 
it  must  and  does  every  day  more  and  more  seek  the  answer 
in  social  legislation. 

But  the  first  manifestations  of  state  activity  in  the  field 
of  labor  legislation  were  of  an  entirely  different  nature 
from  what  is  now  usually  referred  to  as  social  legislation. 
These  laws,  of  which  the  Statute  of  Laborers,  passed  after 
the  Black  Death,  with  its  later  variations  and  the  Eliza- 
bethan Statute  of  Apprentices  are  the  classical  examples, 
were  not  based  upon  any  economic  principle  of  the  welfare 
of  the  laborer,  but,  in  so  far  as  any  general  principle  of 
economics  was  involved,  upon  a  desire  to  keep  low  the  cost 
of  commodities.  Rather,  it  may  be  said,  these  laws  were 
secured  by  the  dominant  legislative  class,  the  monied  class, 
for  its  own  immediate  benefit.  In  this  sense  these  laws, 
like  most  labor  laws,  were  class  legislation  and  nothing  else. 
But  there  did  develop  under  the  name  of  mercantilism, 
of  which  these  two  laws  were  precursors,  a  theory  of  state 
activity  which  entirely  neglected  the  interests  of  the  work- 
ingman.  Under  this  system  the  paternalistic  state  in  its 
endeavor  to  develop  itself  through  its  commerce  subordi- 
nated the  laborer  to  the  merchant  and  subjected  him  to 
minute  control  in  many  of  the  terms  of  his  employment. 
It  is,  of  course,  true  that  the  workingman  whom  this  legis- 
lation affected  had  just  emerged  from  the  status  of  serf- 
dom and  was  a  new  and  disturbing  factor  in  the  industrial 
life  of  the  time.    But  so  thorough  was  this  repressive  legis- 


12  THE   LABOR  LAW   OF   MARYLAND  [158 

lation  that  the  new,  free  laborer  was  hardly  in  a  better 
position  than  the  former  villein. 

It  was  against  this  system  that  Adam  Smith  and  Jeremy 
Bentham  wrote;  and  as  a  result  of  their  preachings  there 
ensued  the  period  of  laissez-faire  in  the  relation  of  the 
state  to  labor.  At  the  climax  of  this  individualistic  philoso- 
phy the  state  retired  almost  completely  from  the  regulation 
of  economic  affairs.  Competition  was  relied  upon  to  work 
the  salvation  of  society.  The  individual  laborer  was  made 
perfectly  free  to  bargain  for  his  own  terms  and  to  secure 
his  own  economic  betterment.  The  state  progressed 
through  the  progress  of  its  individual  citizens. 

The  period  of  laissez-faire  marked  a  real  and  substan- 
tial advance  for  the  workingman,  but  it  was  short-lived.  It 
was  not  any  inherent  fallacies  in  the  theory  which  caused 
its  modification — the  philosophy  of  individualism  has  never 
been  abandoned — but  rather  a  change  in  the  actual  condi- 
tions to  which  the  theory  had  to  be  applied.  Contempora- 
neously with  the  growth  of  laissez-faire  individualism  OC' 
curred  that  stupendous  advance  in  industrialism  which  is 
usually  termed  the  Industrial  Revolution.  With  the  inven- 
tion of  steam-driven  machines  and  modern  means  of  trans- 
portation the  factory  system  of  manufacture  speedily  took 
the  place  of  the  small  shop  system.  A  single  employer 
began  to  employ  hundreds  and  then  thousands  of  laborers. 
The  laborer,  though  legally  and  theoretically  free  to  bar- 
gain with  the  employer  for  the  terms  of  his  employment, 
found  himself  practically  at  such  a  disadvantage  that  the 
employer  could  hire  him  almost  on  his  own  terms.  The 
labor  union  was  the  workingman's  answer  to  the  factory 
system,  but  it  has  not  yet  proved  adequate  in  itself.  The 
state  has,  therefore,  stepped  in  to  guarantee  to  the  laborer 
certain  terms  and  conditions  of  employment  which  have 
been  conceived  to  be  reasonable  and  necessary. 

This  is  the  present-day  status  of  labor  legislation.  The 
doctrine  of  laissez-faire  survives  in  so  far  as  the  state 
leaves  to  the  common  law  and  individual  action  all  that 

/ 


159]  I NTRODUCTION  1 3 

these  instrumentalities  are  capable  of  handling.  Laissez- 
faire  is  abandoned  in  so  far  as  the  state,  recognizing  the 
inequality  of  the  bargaining  power  of  employer  and  em- 
ployee, regulates  as  seems  best  for  the  welfare  of  the  state 
certain  of  the  terms  of  the  bargain.  The  state  sacrifices 
theoretical  individual  liberty  for  what  is  considered  a  truer 
means  of  self-development.  The  state  in  its  endeavor  to 
offset  this  inequality  of  bargaining  power  has  returned  to 
some  of  the  functions  of  the  medieval  paternalistic  state; 
but  those  who  wish  to  make  the  distinction  between  the 
former  antagonistic  and  the  present  sympathetic  attitude  of 
the  state  to  labor  sometimes  term  the  present  state  mater- 
nalistic  rather  than  paternalistic  in  its  regulations.  To  a 
certain  degree  this  distinction  is  specious  and  more  will  be 
said  of  it  in  the  final  chapter  of  this  study.  It  is  sufficient 
to  say  here  that  the  solution  which  has  been  attained  in 
practical  legislation  is  hardly  a  final  remedy. 

In  the  United  States  there  is,  besides  political  theoriz- 
ing upon  the  relation  of  the  state  to  labor,  another  funda- 
mental to  be  considered.  Our  written  constitutions  en- 
forced by  powerful  courts  impose  a  legal  limitation  upon 
state  activity  as  well  as  a  philosophical  limitation.  While 
the  state  is  quiescent  the  constitution  is  unobtrusive;  but 
when  the  state  functions  in  enacting  laws  the  constitution 
exercises  a  tremendous  restraint  upon  state  action.  The 
whole  of  state  activity  in  the  United  States  affecting  the 
labor  problem  has  been  manifested  within  the  last  of  the 
periods  just  discussed,  that  of  laissez-faire  ameliorated  in 
favor  of  the  laborer.  All  of  this  social  legislation  comes  in 
conflict  with  the  "  equal  protection  of  the  laws  "  and  the 
"due  process  of  law"  clauses  of  the  Fourteenth  Amend- 
ment of  the  federal  constitution  or  similar  provisions  of  the 
state  constitutions.    Both  require  brief  discussion. 

The  essentials  of  "  equal  protection  of  the  laws  "  are  eas- 
ily stated.  Every  citizen  of  a  state  is  entitled  to  equal  treat- 
ment by  the  laws  of  that  jurisdiction  and  to  all  the  privi- 
leges extended  to  any  other  citizen  by  the  law.    Reasonable 


14  THE   LABOR   LAW   OF   MARYLAND  [l6o 

classification,  however,  is  permissible  if  exercised  on  ad- 
ministrative or  any  other  justifiable  grounds.  Legislative 
classifications  are  prima  facie  reasonable. 

The  "due  process  of  law"  clause  is  not  so  easily  ex- 
plained. Historically  it  is  traced  back  to  the  per  legem 
terrae  provision  of  Magna  Charta,  but  as  a  substantive 
provision  of  law  its  development  is  recent.  Strictly  con- 
ceived this  clause  might  have  been  construed  as  making 
perpetual  the  eighteenth  century  doctrines  of  laissez-faire 
and  natural  rights,  and  as  limiting  state  activity  to  the  nar- 
rowest bounds.  The  clause  luckily  never  received  so  nar- 
rowing an  interpretation,  but  was  merely  construed  as 
allowing  the  courts  to  inquire  whether  property  appropri- 
ated by  legislation  was  taken  for  a  legitimate  state  purpose. 
Early  in  their  interpretation  of  this  clause,  especially  with 
reference  to  social  legislation,  the  courts  evolved  the  police 
power  of  the  state  as  an  exception  to  the  prohibition  and 
through  this  exception  the  effect  of  the  prohibition  has  been 
much  curtailed.  It  is  indeed  more  profitable  to  consider 
the  cases  dealing  with  labor  legislation  under  the  Fourteenth 
Amendment  as  limiting  the  extent  of  the  police  power  than 
as  defining  due  process  of  law,  for  the  exercise  of  the  police 
power  is  due  process  of  law. 

Thus  viewed,  the  explanation  becomes  more  simple.  It 
is  still  impossible  to  define  and  limit  exactly  the  police 
power,  but  it  is  now  possible  to  give  rather  succinctly  the 
two  extreme  views  to  one  of  which  most  decisions  adhere. 
There  is,  on  the  one  hand,  the  strict  legalistic  view  that  the 
police  power  extends  only  to  the  protection  of  the  health, 
safety  and  morals  of  the  community ;  that  the  state  activity 
should  be  strictly  defined ;  that  none  but  the  most  moderate 
of  social  legislation  should  be  enacted.  The  Maryland 
Court  of  Appeals  leans  to  this  view,  although  it  is  not  en- 
tirely constant  in  its  principles.  The  other  view  is  that  the 
police  power  extends  also  to  the  furtherance  of  public  con- 
venience. As  put  by  Justice  Holmes,  "it  may  be  said  in 
a  general  way  that  the  police  power  extends  to  all  the  great 


l6l]  INTRODUCTION  1 5 

public  needs.    It  may  be  put  forth  in  aid  of  what  is  sanc- 
tioned by  usage,   or  held  by  the  prevailing  morality   or 
strong  and  preponderant  opinion  to  be  greatly  and  imme- 
diately necessary  to  the  public  welfare."^    This  is  the  view 
held  by  the  Supreme  Court  and  appears  to  exercise  practi- 
cally no  restraint  on  really  seriously  considered  legislation.* 
Having  these  fundamentals  in  view,  even  as  so  inade- 
quately outlined  in  this  chapter,  the  object  and  plan  of  this 
study  may  be  made  clear.    The  primary  purpose  has  been 
to  describe  and  analyze  all  of  the  law  of  Maryland  in  any 
way  concerning  labor.     In  order  better  to  understand  the 
law  of  Maryland,  I  have  usually  brought  it  into  contrast 
or  comparison  with  some  conceived  ideal  borrowed  some- 
times from  purely  theoretical  sources,  but  more  often  from 
the  law  of  other  communities,  generally  of  other  States  of 
the  Union  such  as  Massachusetts,  New  York  and  Wiscon- 
sin, but  when  necessary  going  to  England  and  Continental 
Europe  for  suggestions.    In  fulfilling  this  primary  purpose 
there  must  usually  be  some  incidental  consideration  of  the 
manner  in  which  Maryland  has  met  the  problems  which 
have  just  been  outlined.    This  discussion  of  political  theory 
will  be  kept  strictly  in  the  backgroimd  until  the  last  chap- 
ter, which  will  endeavor  to  lay  down  some  constructive 
principles.     The  plan  of  the  work  has  been  to  follow  as 
,closely  as  possible  the  logical  development  of  state  activity. 
No  space  has  been  allotted  to  the  consideration  of  the  law 
of  the  labor  contract,  since  this  law  is  merely  an  adaptation 
of  ordinary  contract  law  and  contains  no  distinctive  feat- 
ures.    The  study  begins  with  the  law  of  the  labor  union, 
which  has  been  almost  entirely  left  to  the  common  law. 
Then  follows  a  consideration  of  the  law  of  workmen's  com- 
pensation, which  marks  the  only  complete  abandonment  of 
any  principles  of  the  common  law  referring  to  labor.    The 
three  succeeding  chapters  deal  with  the  new  social  legis- 


1  Noble  State  Bank  v.  Haskell,  219  U.  S.  104. 

2  For  a  statement  of  the  author's  sympathy  with  this  view,  see  his 
article,  "Imminent  Constitutional  Shams,"  in  the  Forum,  vol.  57. 
Jan.  1917,  pp.  91-98. 


1 6  THE   LABOR   LAW   OF   MARYLAND  [l62 

lation,  demonstrating  how  far  the  laissez-faire  theory  has 
been  abandoned;  and  the  study  ends  with  chapters  on  the 
administrative  system  and  the  relation  of  the  state  to  labor. 
But  before  taking  up  the  law  itself  it  is  necessary  to  set 
forth  some  uninteresting,  but  necessary,  facts  about  Mary- 
land. 

Maryland  Conditions. — As  far  as  labor  law  is  concerned 
Maryland  will  be  found  to  be,  if  not  a  typical  American 
State — for  no  State  is  typical  when  legislation  is  in  question 
— at  least  a  mean  or  average  State.  Its  law  displays  none 
of  the  extremist  characteristics  of  the  experimentally  in- 
clined Western  and  Middle  Western  States,  nor  does  it  lag 
with  the  Southern  States  in  the  wake  of  social  legislation. 
It  follows  rather  closely  on  the  heels  of  New  York  and 
more  remotely  after  the  more  radical  Massachusetts.  Con- 
sidering its  geographical  position  Maryland,  with  its  some- 
what backward  labor  law,  may  be  judged  rather  leniently. 

The  State  is  usually  classed  as  one  of  the  Southern  States. 
Though  the  northernmost  of  these  States  and  outside  of  the 
Confederacy  in  the  Civil  War,  it  was  a  slave  State  and  had 
all  the  traditions  of  the  aristocratic,  non-industrial  South. 
Moreover  its  southern  neighbors,  Virginia  and  West  Vir- 
ginia, have  the  typical  Southern  labor  law,  perhaps  suffi- 
cient for  their  needs,  but  by  no  means  effective.  On  the 
other  hand,  Maryland  has  come  to  be  in  the  class  of  indus- 
trial States  and,  in  this  respect,  her  competitors  lie  to  the 
north  rather  than  to  the  south.  But,  here  also,  the  State 
is  restrained  rather  than  spurred  on  by  its  neighbors. 
Pennsylvania,  which  borders  the  whole  northern  boundary, 
has  until  recently  been  most  delinquent  in  its  labor  law  and 
many  of  the  odious  half  measures  in  the  Maryland  law 
have  been  caused  by  the  potential  competition  of  Pennsyl- 
vania's industries.  These  excuses  for  the  inferiority  of  the 
Maryland  law  call  up  an  explanation  of  another  cause  of 
Maryland's  backwardness.  Like  most  Southern  States, 
Maryland's  party  politics  are  at  a  low  ebb.  The  State 
does  not  seem  to  have  mastered  the  art  of  clean  politics  and 


163]  INTRODUCTION  1 7 

it  is  dominated  much  more  than  is  desirable  by  mediocre 
poHticians.  Ahhough  this  condition  does  not  perhaps  ac- 
count for  many  statutory  shortcomings,  its  effect  is  evi- 
dent in  the  administration  of  the  law. 

Aside  from  these  external  facts,  there  are  other  practi- 
cal difficulties  which  must  be  mastered  in  solving  by  legis- 
lation the  labor  problem.  The  population  of  Maryland  in 
1910  was  1,295,346,  about  evenly  divided  between  urban 
and  rural.  Of  the  urban  population,  however,  558,485 
people  are  collected  in  Baltimore  City,  which  is  the  only 
city  of  any  size  in  the  State.  There  are  besides  Baltimore 
three  other  cities  of  between  ten  and  twenty-five  thousand 
population  and  eleven  other  towns  which  are  classified  as 
urban.  Baltimore  is,  therefore,  practically  the  only  large 
industrial  center  in  the  State  and  in  it  alone  are  found 
many  of  the  social  problems  which  are  usually  the  occasion 
of  legislation.  Maryland,  furthermore,  is  divided  into  two 
unequal  parts  by  the  Chesapeake  Bay.  The  Eastern  Shore, 
with  a  population  of  200,161,  is  almost  entirely  rural  and 
the  only  industry  of  any  importance  is  canning,  which  for 
political  as  well  as  administrative  reasons  is  almost  unregu- 
lated. The  Western  Shore  may  again  be  divided  into  tw'O 
sections,  the  Western  Shore  proper  and  Western  Maryland. 
In  the  first  of  these  is  Baltimore,  w^hich  practically  domi- 
nates the  industrial  life  of  the  section.  Western  Maryland 
lies  in  the  Appalachians  and  centers  around  Cumberland, 
the  second  largest  city  in  the  State.  Its  chief  industries  are 
coal-mining  and  transportation.  Western  Maryland  is  a 
narrow  strip  of  country,  and  it  is  chiefly  here  that  the  low 
standards  of  the  Pennsylvania  and  West  Virginia  labor 
laws  have  to  be  guarded  against.  Geographical  and  eco- 
nomic sectionalism  accounts  for  the  great  amount  of  local 
legislation  on  the  Maryland  statute  books  and  to  some  ex- 
tent for  the  lack  of  coordination  in  the  administrative 
system. 

In  1910  there  were  employed  in  gainful  occupations  a 


1 8  THE   LABOR    LAW   OF    MARYLAND  [164 

total  of  541,164  persons,  of  whom  410,884  were  male  and 
130,280  were  female,  comprising,  respectively,  81  per  cent 
and  25  per  cent  of  the  total  population  of  each  sex  above 
the  age  of  ten  years.  Their  occupational  distribution  was 
as  follows: 

Occupation  Number  Per  Cent 

Agriculture  171,100  21.6 

Manufacture    172,155  31.8 

Domestic  and  personal  service  78,820  14.6 

Trade    61,646  11.4 

Transportation    ^^,77^  7.9 

Clerical    28,871  5.3 

Professional    23,474  4.3 

Public  service   8,954  1.7 

Mining   7,368  1.4 


CHAPTER  II 
The  Labor  Union 

The  Law  of  Union  Activities. — Historically  the  law  of 
labor  union  activities  was  the  first  evolved  by  the  state; 
evolved,  not  enacted,  for  most  of  it  is  judge-made  law. 
Logically  considered,  also,  the  law  of  union  activities  must 
be  accorded  first  place;  for,  granted  that  the  labor  union 
receives  favorable  treatment  from  the  state,  it  seems  easy 
to  demonstrate  that  hardly  any  other  state  activity  is  neces- 
sary. 

The  Maryland  labor  law  of  the  present  day  is  based  on 
and  grew  from  the  eafly  English  law,  and  hence  some  slight 
treatment  of  that  law  is  necessary.  The  beginnings  of  the 
English  law,  however,  are  somewhat  surrounded  in  mys- 
tery. It  seems  that  the  earliest  activities  of  the  union  were 
branded  as  criminal  conspiracy  at  the  common  law,  though 
it  is  by  no  means  certain  that  the  ofifense  of  criminal  con- 
spiracy was  not  the  creation  of  a  statute.  Be  this  as  it  may, 
before  labor  unions  as  such  came  into  prominence  statutes 
were  passed  early  in  the  eighteenth  century  forbidding  com- 
binations of  laborers  for  the  raising  of  wages  and  other 
purposes  and  making  such  combinations  criminal  conspira- 
cies. These  statutes  grew  in  severity  and  comprehensive- 
ness until  the  beginning  of  the  nineteenth  century.  There- 
after the  law  became  more  liberal.  The  cause  of  this  change 
was  the  union  itself.  Utterly  unsanctioned  and  potentially 
oppressed  in  its  most  beneficial  activities  by  the  law,  it  nev- 
ertheless continued  to  exist.  It  was  not  a  casual  phenome- 
non: it  was  an  economic  growth,  necessary  to  and  justified 
by  industrial  conditions.  Slowly  and  often  surreptitiously 
it  grew,  but  grow  it  did  until,  in  the  atmosphere  of  greater 
political  liberty,  it  made  itself  felt  in  legislative  halls.     In 

19 


20  THE    LABOR   LAW   OF   MARYLAND  [l66 

1875  the  ban  of  criminal  conspiracy  was  lifted  and  finally, 
in  1906,  the  union  was  granted  a  most  enviable  place  in 
English  law.^ 

Maryland  in  1776  adopted,  with  the  other  twelve  States, 
the  English  law  of  union  activities  in  so  far  as  it  was  con- 
sonant with  American  ideas  and  ideals.  This  law  was  the 
harsh,  antagonistic  law  of  the  eighteenth  century  hardly 
modified  at  all  in  the  adoption.  Thus,  in  an  early  case,  the 
Maryland  Court  of  Appeals  sums  up  the  law  of  criminal 
conspiracy:  "An  indictment  will  lie  at  common  law — (i) 
for  a  conspiracy  to  do  an  act  not  illegal,  nor  punishable  if 
done  by  an  individual,  but  immoral  only;  (2)  for  a  con- 
spiracy to  do  an  act  neither  illegal  nor  immoral  in  an  indi- 
vidual, but  to  effect  a  purpose  which  has  a  tendency  to 
prejudice  the  public — for  a  conspiracy  (by  two  or  more) 
to  raise  their  wages,  either  of  whom  might  legally  have 
done  so;  (3)  for  a  conspiracy  to  extort  money  from  an- 
other, or  to  injure  his  reputation  by  means  not  indictable  if 
practised  by  an  individual,  as  by  verbal  defamation ;  (4) 
for  a  conspiracy  to  cheat  and  defraud  a  third  person,  ac- 
complished by  means  of  an  act  which  would  not  in  law 
amount  to  an  indictable  cheat  if  effected  by  an  individual ; 
(5)  for  a  malicious  conspiracy  to  impoverish  or  ruin  a  third 
person  in  his  trade  or  profession;  (6)  for  a  conspiracy  to 
defraud  a  third  person  by  means  of  an  act  not  per  se  un- 
lawful and  though  no  person  be  thereby  injured;  (7)  for 
a  bare  conspiracy  to  cheat  or  defraud  a  third  person,  though 
the  means  of  effecting  it  should  not  be  determined  on  at 
the  time."-  It  is  obvious  that,  either  under  the  third  clause 
declaring  indictable  a  conspiracy  to  raise  wages  or  under 
the  fifth  referring  to  a  conspiracy  "to  impoverish  or  ruin 
a  third  person  in  his  trade  or  profession,"  a  labor  union 
would  almost  surely  have  found  itself  running  counter  to 
the  law.    In  fact,  if  the  union  were  merely  formed  for  one 

1  For  a  complete  discussion  of  the  early  law  of  conspiracy  as 
applied  to  labor  unions,  see  J.  W.  Bryan,  English  Law  of  Conspiracy. 

2  State  V.  Buchanan,  5  H.  &  J.  317  (1821). 


167]  THE    LABOR    UNION  21 

of  these  purposes — and  it  must  be  remembered  that  these 
prohibitions  against  conspiracy  referred  to  the  indirect 
effects  as  well  as  to  the  direct  purposes  of  the  union — it 
would  be  absolutely  barred ;  for,  in  the  same  case,  the  court 
declared :  "  A  conspiracy  is  a  substantive  offence  and  pun- 
ishable at  common  law,  though  nothing  be  done  in  execu- 
tion of  it."  It  seems,  indeed,  that  this  decision  was  entirely 
efficient,  for  no  cases  concerning  trade  unions  came  before 
the  Appeal  Court  under  this  decision.  But  it  must  not  be 
imagined  that  merely  because  no  cases  against  unions  came 
before  the  court  there  were  no  unions.  The  decision  was 
efficient  and  complete,  but  hardly  effective.  As  in  England, 
trade  unions  seem  to  have  flourished  even  under  the  shadow 
of  the  law  and  to  have  carried  on  trade  disputes,  perhaps 
not  legally,  but  extra-legally. 

It  was  probably  because  of  the  growing  strength  of  the 
unions,  especially  as  political  institutions,  that  the  legisla- 
ture of  1884  was  compelled  to  recognize  their  existence.  In 
that  year  two  bills  were  enacted  legalizing  labor  unions. 
The  first  declared  that  an  act  of  a  combination  formed  in 
"  furtherance  of  a  trade  dispute  between  employers  and 
workmen  shall  not  be  indictable  as  a  conspiracy,  if  such  act 
committed  by  one  person  would  not  be  punishable  as  an 
offense  (nothing  in  this  section  shall  affect  the  law  relat- 
ing to  riot,  unlawful  assembly,  breach  of  peace,  or  any 
offense  against  any  person  or  against  property)."^  The 
second  was  an  addition  to  the  incorporation  acts,  permit- 
ting the  incorporation  of  trade  unions  "  to  promote  the 
well-being  of  their  every  day  life,  and  for  mutual  assistance 
in  securing  the  most  favorable  conditions  for  the  labor  of 
their  members."*  In  this  year,  then,  we  can  say,  the  labor 
union  entered  the  realm  of  law  in  Maryland.  In  this  year, 
also,  the  law  concerning  unionism  took  a  different  turn. 
Prior  to  this  the  unions  had  been  subject  to  the  law  of 

3  Laws  1884,  Ch.  266;  Code  1914,  Art.  2^,  Sec.  40. 

*Laws  1884,  Ch.  267;  Code  1904,  Art.  23,  Sec.  41.  Incorporation 
since  1908  takes  place  under  the  general  law  of  incorporation,  Laws 
1908,  Ch.  240,  Sees.  2-5;  Code  1911,  Art.  23,  Sees.  2-5. 


22  THE  LABOR   LAW   OF   MARYLAND  [l68 

criminal  conspiracy;  after  these  acts  the  employers  were 
able  to  combat  the  unions  in  court  merely  by  civil  suits  or 
injunctions.  Prior  to  this  year,  moreover,  no  cases  involv- 
ing unionism  came  before  the  Court  of  Appeals,  so  that  the 
Maryland  law,  in  contradistinction  to  the  English  law,  has 
practically  nothing  to  do  with  criminal  conspiracy. 

The  salient  principle  in  the  Maryland  law  of  labor  unions 
— and  indeed  in  all  American  law  on  this  subject — is  the 
right  of  the  individual  to  his  own  property  and,  what  is 
practically  identical  in  law,  the  right  to  freedom  of  contract. 
There  has  also  been  evolved  another  right,  sometimes  con- 
sidered a  property  right,  the  right  to  carry  on  one's  busi- 
ness or  to  work  at  one's  trade  free  from  outside  interfer- 
ence. This  right  is  indeed  a  recent  creation  of  the  courts, 
and,  to  a  certain  degree,  an  unfortunate  creation.  It  is 
broader  than  the  right  of  personal  freedom  and  was,  there- 
fore, useful  in  ruling  against  some  of  the  first  harsh,  but 
elusive,  activities  of  the  union;  but  there  are  two  sides  to 
this  right  and  the  unions  soon  came  to  assert  it  on  their 
side.  There  are  in  every  conflict  between  union  and  em- 
ployer two  conflicting  rights.  A  strike  is  called  for  an  in- 
crease in  wages  or  for  shorter  hours,  what  the  employees 
conceive  to  be  their  rights ;  the  employer  forthwith  asserts 
that  his  freedom  of  contract  is  being  abridged.  A  labor 
union  stipulates  that  its  men  shall  work  only  in  a  "  closed 
shop,"  and  the  discharged  non-union  man  sues  for  a  viola- 
tion of  his  right  to  work  as  he  will.  To  generalize  briefly 
in  advance,  we  shall  find  in  considering  strikes,  boycotts, 
closed  shops — in  short,  all  of  the  means  by  which  a  union 
makes  its  demands  effective — that  "honest  effort  to  better 
the  conditions  of  employment  by  the  members  of  a  labor 
union  is  lawful,"^  though  it  may  incidentally  interfere  with 
the  right  of  an  individual  to  work  on  such  terms  as  he  may 
see  fit.  If,  however,  the  aim  of  the  union  is  wilful  inter- 
ference with  the  individual,  though  the  union  may  thereby 
be  indirectly  benefited,  the  union  is  operating  contrary  to 

5  Minasian  v.  Osborne,  210  Mass.  250,  96  N.  E.  1036  (1912). 


169]  THE    LABOR    UNION  2$ 

the  law.  Let  us  first,  however,  consider  in  some  detail  the 
law  relating  to  the  various  activities  of  the  unions. 

"The  right  to  organize  and  to  utilize  their  organization 
by  instituting  a  strike  is  an  exercise  of  the  common  law 
right  of  every  man  to  pursue  his  calling,  whether  of  labor 
or  business,  as  he  in  his  judgment  sees  fit."*^  A  strike  per 
se  is  not  unlawful ;  it  is  the  purpose''  or  the  means®  which 
renders  it  unlawful.  "  The  law  does  not  permit  either  em- 
ployer or  employee  to  use  force,  violence,  threats  of  force 
or  threats  of  violence,  intimidation  or  coercion,"^  so  that  it 
may  be  said  now  and  for  all  that  force  is  unlawful ;  and, 
for  the  sake  of  brevity,  the  consideration  of  violence  may 
be  dismissed  from  the  following  discussion. 

The  leading  Maryland  case  on  labor  organizations  is  the 
case  of  My  Maryland  Lodge  v.  Adt,^*^  and  it  will  be  best 
to  quote  first  from  that  part  of  the  decision  relating  to 
strikes.  "  Employees  have  a  perfect  right,"  says  the  court, 
"  both  as  individuals  and  in  combination,  to  fix  a  price  upon 
their  labor,  and  to  refuse  to  work  unless  that  price  is  ob- 
tained. They  may  organize  to  improve  their  condition  and 
to  secure  better  wages.  They  may  even  use  persuasion  to 
have  others  join  their  organization.  They  have  an  unques- 
tionable right  to  present  their  cause  to  the  public  in  news- 
papers or  circulars  in  a  peaceable  way,  but  with  no  attempt 
at  coercion.  If  ruin  to  the  employer  results  from  their 
peaceable  assertion  of  these  rights,  it  is  a  damage  without 
remedy."  Laborers,  therefore,  may  strike  for  an  increase 
of  wages,  for  shorter  hours,  for  better  working  conditions, 
for  specified  methods  of  employment  or  of  pay.^^     They 

«  Martin,  Modern  Law  of  Labor  Unions,  p.  36. 

7  Reynolds  v.  Davis,  198  Mass.  294,  84  N.  E.  457. 

8  My  Maryland  Lodge  v.  Adt,  100  Md.  283,  68  L.  R.  A.  152. 
e  Ibid. 

"  Ibid. 

11  It  has  even  been  held  in  a  federal  court  (Delaware,  L.  &  W. 
R.  R.  Co.  vs.  Switchmen's  Union,  158  Fed.  541)  that  workmen  may 
strike  for  such  purposes  even  though  it  be  in  violation  of  their 
service  contract.  What  the  court'  very  probably  meant  was  that 
these  strikers  could  not  be  enjoined;  they  are  clearly  liable  for 
damages. 


24  THE    LABOR    LAW    OF    MARYLAND  [l?© 

may,  it  has  been  held,  even  seek  the  aid  of  their  fellow 
workers  in  another  establishment  to  join  with  them  in  a 
sympathetic  strike  if  the  employer  is  striving  to  circumvent 
the  efforts  of  the  strikers  by  having  his  work  done  in  brother 
employers'  shops/-  But  this  case,  although  well  considered 
and  precise,  must  be  confined  to  the  exact  point  involved; 
for  a  sympathetic  strike,  like  a  secondary  boycott,  usually 
brings  into  the  contest  an  uninterested  third  person  who,  if 
injured,  usually  has  a  cause  of  action  against  the  union. 
Where  there  is  such  a  community  of  interest  as  in  this  case, 
however,  a  sympathetic  strike  is  not  actionable.  Another 
danger  which  must  be  avoided  by  the  sympathetic  strike  as 
well  as  by  all  other  union  activities  is  the  possibility  that 
the  union  may  be  running  counter  to  the  contract  liabilities 
of  a  third  party,  for  "  a  man  who  induces  one  of  two  par- 
ties to  a  contract  to  break  it,  intending  thereby  to  injure  the 
other  or  obtain  a  benefit  for  himself,  does  the  other  an 
actionable  wrong."^^  This  is  a  fundamental  rule  of  con- 
tract law  and  has  no  special  application  to  the  law  of  the 
labor  union :  it  is  mentioned  here  merely  because  of  the  num- 
ber of  times  the  union  has  felt  its  force/* 

The  foregoing  conclusions  that  a  strike  is  a  legal  instru- 
ment of  the  labor  tmion  apply  only  when  the  disputes  ars 
strictly  limited  to  the  two  parties  concerned,  the  strikers 
and  their  employer ;  when  a  third  party  suffers  injury,  as 
was  intimated  in  discussing  the  sympathetic  strike,  the 
strike  stands  in  less  favor  with  the  courts.  Unfortunately 
it  is  a  rare  strike  which  does  not  directly  or  indirectly  affect 
some  third  person.  The  cause  of  this  can  readily  be  seen 
if  we  consider  the  problem  from  the  point  of  view  of  the 
unions.  The  strike  cannot  be  effective  if  the  employer  is 
able  to  fill  easily  the  places  of  the  strikers  with  non-union 

12  Iron  Moulders'  Union  v.  Allis-Chambers  Co.,  i66  Fed.  45 ;  20 
L.  R.  A.  (N.  S.)  315. 

13  Gore  V.  Condon,  87  Md.  368,  376. 

1*  A  few  of  these  cases  only  are  here  cited :  Garst  v.  Charles,  187 
Mass.  144;  Folsom  v.  Lewis,  208  Mass.  336;  Iron  Moulders'  Union 
V.  Allis-Chambers  Co.,  166  Fed.  45. 


I/l]  THE    LABOR    UNION  2$ 

men.  The  unions  strive  to  prevent  this  by  picketing  and  by 
making  the  union  monopoHstic  as  to  that  particular  class  of 
workmen.  Again,  the  strike  will  not  attain  the  maximum 
efficiency  if  the  standard  which  is  obtained  by  the  union  is 
continually  undermined  by  the  cut-throat  competition  of 
non-union  men  in  the  same  shop.  The  unions  fight  against 
this  evil  with  the  instrument  of  the  closed  shop.  Again,  the 
strike  will  often  fail  entirely  if  other  employers  or  dealers 
trade  in  their  normal  manner  with  the  tabooed  employer. 
To  offset  this,  the  union  has  evolved  the  boycott,  or  more 
correctly  in  the  technical  economic  phrase,  the  secondary 
boycott.  But,  before  considering  any  of  these  more  ad- 
vanced forms  of  union  activity,  it  will  be  first  necessary  to 
consider  one  more  form  of  strike,  a  rather  more  advanced 
and  more  involved  form  of  this  particular  activity  which 
might  be  called  a  cross  between  the  strike  and  the  closed 
shop.  It  is  a  strike,  not  to  procure  an  immediate  advantage, 
as,  for  example,  a  raise  of  wages,  but  to  strengthen  the 
union  by  dictating  to  the  employer  certain  terms  of  employ- 
ment for  all  men  in  his  shop.  A  Maryland  case  will  illus- 
trate. 

In  Lucke  v.  Clothing  Cutters'  Assembly^^  the  appellant, 
a  non-union  man,  had  had  permanent  employment  termin- 
able at  will  with  the  New  York  Clothing  House.  He  was 
objected  to  by  the  appellee,  who  notified  the  clothing  house 
that  they  objected  to  working  with  non-union  men.  Lucke 
applied  for  membership  in  the  union ;  but,  because  of  the 
lack  of  employment  among  its  then  members,  the  appellee 
refused  him  membership.  Later  the  union  sent  notice  to 
the  employer  that,  if  Lucke  were  not  discharged,  it  would 
notify  through  its  official  organ  all  labor  organizations  of 
the  city  that  "the  house  was  a  non-union  one."  Feeling 
that  it  was  threatened  with  a  boycott,  though  during  the 
trial  the  union  denied  that  this  was  its  intention,  the  New 
York  Clothing  House  discharged  the  appellant,  who  later 


^^yy  Md.  396;  19  L.  R.  A.  408  (1893). 


26  THE   LABOR   LAW    OF    MARYLAND  [172 

brought  suit  against  the  union  for  damages.  The  court  held 
that  Lucke  was  entitled  to  damages  since  the  union  had  in- 
terfered with  his  right  of  property  and  freedom  of  contract. 
This  interference  may  have  indirectly  benefited  the  union, 
but  it  wilfully  and  directly  injured  the  individual  in  one  of 
his  fundamental  rights ;  and  the  court  said : 

"  It  is  not  necessary  that  such  interference  [of  the  union 
with  a  laboring  man's  privilege  of  seeking  an  honest  liveli- 
hood] should  have  been  malicious  in  its  character.  ...  In 
this  case  we  think  the  interference  of  the  appellee  was  in 
law  malicious  and  unquestionably  wrongful  .  .  .  and,  by  so 
doing,  it  [the  appellee]  has  invaded  legal  rights  of  the  ap- 
pellant for  which  an  action  properly  lies. 

"When  the  state  granted  its  generous  sanction  to  the 
formation  of  corporations  of  the  character  of  the  appellee 
(Code  1904,  Art.  23,  Sec.  37)  it  certainly  did  not  mean 
that  such  promotion  (of  the  well-being  of  their  every  day 
life  and  for  mutual  assistance  in  securing  the  most  favor- 
able conditions  for  the  labor  of  their  members)  was  to  be 
secured  by  making  war  upon  the  non-union  laboring  man, 
or  by  any  legal  interference  with  his  rights  and  privileges. 
The  powers  with  which  this  class  of  corporations  are 
clothed  are  of  a  peculiar  character,  and  should  be  used  with 
prudence,  moderation  and  wisdom,  so  that  labor  in  its  or- 
ganized form  shall  not  become  an  instrument  of  wrong  and 
injustice  to  those  who,  in  the  same  avenue  of  life,  and  some- 
times under  less  favorable  circumstances,  are  striving  to 
provide  the  means  by  which  they  can  maintain  themselves 
and  their  famihes." 

To  understand  more  thoroughly  the  significance  of  this 
case  let  us  look  at  one  apparently  opposed  to  it,  that  of 
Pickett  V.  Walsh,"  in  which  was  held  legal  a  strike  to  en- 
force an  agreement  between  a  bricklayers'  union  and  a  con- 
tractor, by  which  the  union  agreed  to  work  for  the  contrac- 
tor if  he  would  employ  its  members  to  perform  some  tasks 

16  192  Mass.  572;  78  N.  E.  753;  6  L.  R.  A.  (N.  S.)  1067  (1907). 


173]  '^^^   LABOR   UNION  2/ 

closely  allied  to,  but  less  skilled  than  bricklaying.  The 
court  differentiated  between  these  two  cases  on  the  ground 
that  the  strike  in  the  latter  case  was  on  a  matter  directly 
concerning  the  two  parties  to  it,  the  strikers  and  the  em- 
ployers, and  that  the  laborers  were  striving  directly  to  im- 
prove their  own  conditions.  This  distinction  seems  to  have 
been  generally  followed,"  but  in  discussing  this  question 
some  of  the  finest  legal  reasoning  has  been  used.  The 
tendency  seems  to  be  to  find  a  community  of  interest  among 
the  strikers  and  between  them  and  their  brother  unionists 
who  are  not  actively  engaged  in  the  strike,  but  for  whose 
benefit  the  strike  is  declared,  and,  on  the  whole,  the  trend 
seems  to  be  towards  holding  legal  strikes  aimed  at  securing 
these  competitive  advantages  for  union  laborers.  The  dis- 
tinction, however,  is  still  good  between  mediate  and  imme- 
diate quarrels  and  will  certainly  be  used  in  hard  cases  where 
justice  seems  to  demand  it.^® 

If  the  tendency  has  been  towards  increasing  the  rights 
and  powers  of  trade  unions  in  securing  the  privileged  em- 
ployment of  its  own  members,  the  absolute  contrary  has 
been  true  with  respect  to  the  legality  of  picketing.  Labor 
unions,  in  fact,  have  suffered  to  a  great  degree  because  of 
of  injunctions  restraining  them  from  posting  members  on 
the  environs  of  the  place  of  strike  to  persuade  strike- 
breakers not  to  take  employment  in  the  hostile  shop  and 
to  obtain  information  as  to  the  employer's  activities.  Pick- 
eting, it  is  true,  was  far  from  being  such  a  milk-and-water 
affair  twenty-five  years  ago  as  it  is  now ;  it  was  in  this  ac- 
tivity, perhaps,  that  the  trade  unions  showed  their  ugliest 
side  and  incurred  the  ill-will  of  the  public.  This  popular 
estimate  seems  to  have  been  reflected  to  a  great  degree  in 
the  courts,  which,  beginning  by  merely  discountenancing 
picketing  that  was  contrary  to  public  order,  have  come  to 

1'  E.  g.,  National  Fireproofing  Co.  v.  Mason  Builders'  Ass'n,  169 
Fed.  256,  26  L.  R.  A.  (N.  S.)  148;  and  Meur  v.  Speer,  32  L.  R.  A. 
(N.  S.)  792  (Ark.). 

18  For  a  fuller  discussion  see  note  in  6  L.  R.  A.  (N.  S.)  1067. 


28  THE   LABOR   LAW    OF    MARYLAND  ['74 

look  Upon  almost  all  picketing  as  enjoinable,  if  not  abso- 
lutely criminal. 

A  general  declaration  of  the  law  was  given  in  the  case  of 
My  Maryland  Lodge  v.  Adt:^**  "They  (the  union  laborers) 
may  even  use  persuasion  to  have  others  join  their  organiza- 
tion.^^ They  have  an  unquestionable  right  to  present  their 
cause  to  the  public  in  newspapers  or  circulars  in  a  peace- 
able way.  ,  .  .  But  the  law  does  not  permit  either  employer 
or  employee  to  use  force,  violence,  threats  of  force  or 
threats  of  violence,  intimidation  or  coercion."  The  trouble- 
some question  has  been,  what  is  intimidation  and  coercion? 
Thus  mere  argument,  where  the  odds  were  four  or  five  to 
one  in  favor  of  the  arguers,  has  been  said  to  constitute  un- 
lawful intimidation. 2^  Peaceful  picketing,  which  inci- 
dentally interfered  with  customers  patronizing  the  picketed 
shop,  has  been  enjoined.-^  A  fair  statement  of  the  law  is 
contained  in  the  following :  "  The  very  fact  of  establishing 
a  picket  line  is  evidence  of  an  intention  to  annoy,  embar- 
rass and  intimidate,  whether  physical  violence  is  resorted 
to  or  not.  There  have  been  a  few  cases  where  it  was  held 
that  picketing  by  a  labor  union  is  not  unnecessarily  unlaw- 
ful if  the  pickets  are  peaceful  and  well  behaved ;  but,  if  the 
watching  and  besetting  of  the  workmen  is  carried  to  such 
a  length  as  to  constitute  an  annoyance  to  them  or  their  em- 
ployed, it  becomes  unlawful.  ...  To  picket  .  .  .  was  in 
itself  an  act  of  intimidation  and  an  unwarrantable  interfer- 
ence with  the  employer's  rights."  Even  if  pickets  are  not 
guilty  of  intimidation,  "  the  complainants  are  entitled  to  pro- 
tection."^^ The  Maryland  law  would  seem  to  go  quite  as 
far  as  this  Illinois  case,  for,  in  spite  of  the  rather  liberal 
language  just  quoted  from  the  Adt  case,  the  court  in  that 

19  loo  Md.  283 ;  68  L.  R.  A.  752- 

20  See,  however,  Hitchman  Coal  &  Coke  Co.  v.  Mitchell  et  al.,  38 
Sup.  Ct.  65  (1917). 

21  Allis-Chambers  Co.  v.  Iron  Moulders'  Union,  150  Fed.  155. 

22  Foster  v.  Retail  Clerks'  Intern'tl  Protective  Ass'n,  78  N.  Y.  S. 
860. 

23  Barnes  v.  Chicago  Typographical  Union,  232  111.  421 ;  14  L.  R. 
A.  (N.  S.)  1018. 


1/5]  THE   LABOR   UNION  29 

case  upheld  an  injunction  which  practically  forbade  all 
picketing,  even  for  purposes  of  information  only.  It  would 
then  seem  that  picketing  has  been  in  law  practically  plucked 
of  its  stings :  picketing  can  perhaps  be  safely  used  only  as 
a  means  of  procuring  information.  This  would  indeed  be 
a  hard  blow  at  unionism  if  it  were  not  for  the  fact  that  an 
employer  will  not  usually  combat  in  the  courts  peaceful 
picketing  unless  it  is  used  in  conjunction  with  an  unlawful 
strike  or  boycott.  As  a  practical  matter  it  may  then  be  said 
that  peaceful  picketing  as  an  adjunct  of  any  other  lawful 
activity  of  a  union  is  not  likely  to  lead  to  any  action  at  law. 
If  used  in  its  really  civilized  form  this  most  powerful 
weapon  of  struggling  unionism  may  be  still  of  avail  in  in- 
dustrial disputes. 

Thus  far  we  have  been  considering  the  union  mainly  as 
a  body  of  workingmen ;  it  has  another  aspect,  that  of  a 
body  of  consumers ;  and  it  is  upon  this  quality  of  its  mem- 
bership that  the  union  relies  in  the  activity  usually  known 
by  the  name  of  the  boycott.  In  its  conflict  with  the  em- 
ployer the  boycott  is  a  frequent  weapon  of  the  union.  In 
itself,  as  will  be  seen,  it  is  not  a  very  efficient  weapon ;  but 
in  conjunction  with  the  strike,  with  which  indeed  it  is  gen- 
erally used,  it  often  enables  the  union  to  achieve  what  an 
unaided  strike  might  not  have  attained.  There  are  two  de- 
grees of  the  boycott,  primary  and  secondary ;  but  the  courts 
do  not  seem  to  observe  the  distinction,  some  including  the 
two  classes  under  one  head,  others  limiting  the  two  classes 
at  entirely  different  points,  and  a  great  number  having  ref- 
erence to  the  second  class  alone  when  they  speak  of  the  boy- 
cott. The  primary  boycott  is  the  act  of  a  combination  of 
individuals  who  agree  among  themselves  not  to  patronize  a 
certain  dealer.  The  secondary  boycott  is  the  act  of  a  com- 
bination which  tries  to  economically  outlaw  a  certain  dealer 
by  intimidating  third  parties,  either  by  strike  or  boycott,  to 
prevent  them  from  patronizing  this  dealer.  Assuming  the 
object  of  the  boycott  to  be  legal,  the  primary  boycott  is  gen- 


30 


THE   LABOR  LAW   OF   MARYLAND  [176 


erally  a  legal  activity  of  the  union,  whereas  the  secondary 
boycott  is  quite  as  generally  deemed  illegal. 

In  Maryland  we  have  a  leading  case  on  this  subject,  and 
it  may  be  well  to  consider  it  specifically.  The  case,  My 
Maryland  Lodge  v.  Adt,^*  is  one  of  secondary  boycott,  but 
the  court  laid  down  some  additional  law  of  utmost  impor- 
tance. Adt,  upon  refusing  an  increase  in  wages,  had  been 
struck  against.  Further,  the  union  sent  circulars  to  the 
brewers  who  were  in  the  habit  of  contracting  with  Adt  for 
machinery  asking  them  to  boycott  Adt  on  the  ground  that 
he  no  longer  had  a  union  shop.  Upon  failure  of  the  brew- 
ers to  meet  this  request,  the  union  circulated  "unfair" 
broadsides  against  them;  and  in  self  defense  the  brewers 
were  compelled  to  withdraw  their  patronage  from  Adt, 
whose  business  was  thereby  practically  ruined.  On  these 
facts  the  Court  of  Appeals  upheld  an  injunction  against  the 
union,  and  declared  such  methods  of  warfare  manifestly 
unfair  and  actionable.  The  court  in  this  case  merely  held 
illegal  the  secondary  boycott;  but  some  of  its  language  is 
so  loose  that  it  may  be  possible  to  interpret  it  as  declaring 
all  boycotts  illegal,  especially  as  the  court  makes  no  dis- 
tinction between  the  two  classes  of  boycott.  It  is  submit- 
ted, however,  that  if  the  court  was  referring  to  the  primary 
boycott  per  se,  its  stand  is  hardly  justified. 

The  distinction,  indeed,  between  the  two  classes  of  boy- 
cott has,  as  was  intimated,  been  sustained  by  the  great 
weight  of  authority.'^^  An  individual  has  a  right  to  bestow 
his  patronage  where  he  wishes;  and  the  mere  fact  that  he 
combines  with  others  in  carrying  out  his  purpose  does  not 
make  the  act  prima  facie  actionable.  To  make  it  illegal 
there  must  be  in  the  object  or  means  of  the  primary  boy- 
cott some  malicious  purpose,  as  the  injury  of  another  with- 
out any  direct  benefit  to  those  engaged  in  the  boycott.    The 

24  100  Md.  238;  56  Atl.  721 ;  68  L.  R.  A.  752  (1905). 

25  See  American  Federation  of  Labor  v.  Buck's  Stove  &  Range 
Co.,  33  App.  D.  C.  83;  32  L.  R.  A.  (N.  S.)  748;  and  note  on  this 
case  in  L.  R.  A. 


177]  THE  LABOR   UNION  3 1 

primary  boycott  being  in  itself  lawful,  any  publication  in 
furtherance  thereof,  if  that  is  the  purpose  of  the  publi- 
cation and  no  intimidation  or  coercion  is  intended,  would 
also  be  lawful  ;^^  but  here  again,  as  in  the  question  of  pick- 
eting, the  courts  are  prone  to  see  intimidation  in  any  pub- 
lication, with  the  result  that  the  unions  must  be  most  care- 
ful in  their  use  of  legally  recognized  weapons.  If,  then,  it 
is  dangerous  to  publish  unfair  lists  in  primary  boycotts,  it 
is  of  course  an  absolute  infringement  upon  the  rights  of 
another  to  publish  such  a  list  in  pursuance  of  a  secondary 
boycott. 

It  is  needless  and  would  be  indeed  useless  to  enter  here 
into  a  detailed  investigation  of  what  has  been  held  illegal 
boycott.  The  rule  seems  to  be  that  if  a  third  party  has 
been  drawn  into  the  controversy  between  the  two  contend- 
ing factions,  then  the  boycott  is  a  secondary  boycott  and 
he  against  whom  it  is  being  prosecuted  may  recover  for  his 
damages.^''  This,  although  it  seems  to  be  well-settled  law, 
involves  an  inconsistency.  Take,  for  example,  the  Adt  case : 
employees  strike  for  increase  of  wages  and  in  pursuance  of 
that  strike  for  a  perfectly  lawful  purpose  institute  a  boy- 
cott against  the  employer.  In  the  Adt  case  there  was  some 
question  as  to  the  legality  of  the  means  used  to  enforce  the 
boycott,  but  that  does  not  seem  to  have  influenced  the  de- 
cision. Then,  granting  the  legality  of  the  strike,  why  should 
it  be  illegal  to  enlist  the  sympathies  of  third  persons  who 
deal  with  the  employer?    If  these  third  persons  are  injured, 

26  See  note  in  32  L.  R.  A.  (N.  S.)  1017;  and  cases  cited  there, 
mostly  New  York  cases. 

27  Thus  it  has  been  held  that  "  a  combination  of  employees  to 
compel  their  employers,  by  threats  of  quitting  and  by  actually  quit- 
ting their  service,  to  withdraw  from  a  mutually  profitable  relation 
with  a  third  person  having  no  effect  on  the  character  or  reward  of 
the  employees'  services,  for  the  purpose  of  injuring  such  third  per- 
son, is  a  boycott  and  an  unlawful  conspiracy."  (Thomas  v.  Cinn. 
etc.  Ry.  Co.,  62  Fed.  803)  ;  and  that  it  was  illegal  for  a  union  to 
boycott  an  employer  of  non-union  labor  by  refusing  to  work  for 
another  employer  who  furnished  him  with  supplies.  [Burnham  v. 
Dowd,  104  N.  E.  841  (Mass.).]  There  are  innumerable  cases  on 
this  subject,  generally  decided  on  a  question  of  fact. 


32  THE    LABOR   LAW    OF    MARYLAND  [178 

are  coerced  into  the  boycott,  they  have  their  redress  in  the 
courts  against  the  union.  But  why  should  the  employer  be 
entitled  to  plead  in  a  controversy  between  himself  and  the 
union  the  injury  of  these  third  parties,  who  themselves  do 
not  complain?  The  employer,  it  is  true,  is  injured,  but  he 
is  injured  in  the  course  of  fair  competition  between  himself 
and  the  union,  and  it  is  damnum  absque  injuria.  If  we 
grant  that  a  strike  legally  pursued  is  justified  to  raise  wages, 
a  boycott  for  the  same  purpose,  as  long  as  no  third  person 
complains,  would  seem  equally  justifiable,  and  the  employer 
should  not  be  heard  to  voice  a  third  party's  injury  in  pro- 
tection of  himself. 

Perhaps  the  real  explanation  of  the  courts'  antagonism 
to  the  boycott  is  to  be  found  in  their  fear  of  its  potentiali- 
ties— for  it  is  one  of  the  most  efficient  weapons  of  the  union. 
But  if  this  explanation  is  true,  the  courts  are  certainly 
guilty  of  a  wrongful  invasion  of  the  legislative  dom.ain  and 
the  explanation  is  merely  a  confession  of  this. 

Closely  connected  with  the  boycott  and  apparently  a  much 
more  effective  means  of  enforcing  the  boycott  is  the  fre- 
quently occurring  rule  of  a  labor  union  forbidding  its  mem- 
bers to  handle  non-union  material,  that  is,  material  pre- 
pared by  non-union  men.  It  has  been  held  that  the  union 
may  under  conditions  issue  such  a  rule.  Where  the  object 
of  a  labor  union  or  the  purpose  of  its  action  under  this  rule 
is  principally  to  injure  another  or  his  property,  the  agree- 
ment forming  the  union  is  unlawful ;  but  where  the  pur- 
pose is  only  to  advance  the  interests  of  the  members  6f  the 
union  the  union  is  not  illegal  and  such  rules  may  legally 
be  enforced. ^^  Here,  again,  the  distinction  crops  up  be- 
tween the  "  mutual  advantage "  of  the  laborers  and  the 
malicious  injury  of  another.  "So  long  as  the  motive  [of 
the  rule]  is  not  malicious,  the  object  not  unlawful  nor  op- 
pressive, and  the  means  neither  deceitful  nor  fraudulent, 

28  Bossert  v.  Brotherhood  of  Carpenters  and  Joiners  of  America, 
137  N.  Y.  321;  Gill  Engraving  Co.  v.  Doerr,  214  Fed.  iii. 


179]  "^^^   LABOR   UNION  33 

the  result  is  not  a  [illegal]  conspiracy,  although  it  may 
necessarily  work  injury  to  other  persons, "^° 

The  distinction  between  this  rule  and  the  boycott  is  not 
easy  to  perceive  at  first  blush.  The  courts  have  distin- 
guished it  upon  the  ground  that  the  rule  was  laid  down 
before  any  difference  arose  between  the  employer  and  the 
union,  and  that  hence  it  might  impliedly  have  entered  into 
the  service  contract.  Moreover,  as  stated  above,  the  courts 
have  recognized  the  direct  interests  of  the  laborers  in  the 
rule ;  and,  finally,  the  quarrels  have  been  directly  between 
the  employer  and  the  union,  the  boycotted  dealer  did  not 
enter  into  the  consideration.  This  method  of  boycotting  is 
naturally  only  applicable  in  well-organized  trades  with  a 
stable  membership,  and  the  older  and  more  stable  unions 
have  to  a  great  extent  made  use  of  it.  It  would  seem  one 
of  the  most  effective  instruments  that  the  unions  can  use ; 
for,  not  being  tainted  with  the  ancient  obloquy  of  trade 
unions,  the  courts  have  been  more  liberal  in  their  attitude 
toward  it. 

Precisely  corresponding  to  the  boycott,  but  issuing  from 
the  other  party  to  the  controversy,  is  the  blackhst.  It  is  a 
weapon  that  employers  have  been  fond  of  using  against  the 
strike.  As  such  it  would  seem  to  have  generally  been  held 
legal.  That  is,  if  the  employer  of  the  shop  which  is  the 
object  of  the  strike  should  distribute  to  his  brother  employ- 
ers, who  are  associated  with  him  in  trade  agreements,  a 
list  of  his  striking  employees  with  the  intention  that  these 
other  employers  should  refuse  the  strikers  employment  in 
their  shops,  the  courts  would  almost  certainly  hold  such  a 
blacklist  lawful.  But  it  is  practically  impossible  to  be  abso- 
lutely certain  how  far  the  courts  will  go  in  holding  any 
blacklist  lawful.  They  are  here  confronted  with  the  same 
conflict  that  has  been  evident  in  all  the  law  of  union  activi- 
ties, the  conflict  of  the  right  of  the  employers  to  carry  on 
their  business  as  they  see  fit  and  the  right  of  the  employees 

29  National  FireproofinR  Co,  v.  Mason  Builders'  Ass'n.  169  Fed. 
256,  26  L.  R.  A,  (N.  S.)  148, 


34  THE   LABOR   LAW    OF    MARYLAND  [l8o 

to  the  free  use  of  their  laboring  powers.  As  was  said  in  a 
recent  Maryland  case,  "neither  [the  employer  nor  em- 
ployee] has  the  right  to  interfere,  without  cause,  with  the 
business  or  occupation  of  the  other."^°  And  the  courts,  it 
would  seem,  are  more  opposed  to  the  combination  mani- 
festing itself  in  the  blacklist  than  they  are  to  the  combina- 
tions of  laborers  against  laborer.  We  have  seen  in  our  con- 
sideration of  strikes  directed  against  the  non-union  work- 
ingman,  how  eager  the  courts  are  to  protect  the  laborer 
against  the  combination,  but  they  have  been  somewhat  re- 
strained by  the  fact  that  the  two  competitors  are  in  the  same 
economic  position.  The  blacklist,  however,  represents  a 
combination  of  economically  strong  employers  functioning 
to  deprive  a  workman  of  his  only  means  of  livelihood.  It 
is  natural  that  the  courts  should  be  more  prone  to  condemn 
the  blacklist  than  a  combination  of  workingmen. 

The  blacklist,  nevertheless,  does  not  always  offend  the 
courts.  As  a  counter-weapon  to  the  strike,  as  has  been 
said,  the  blacklist  is  a  proper  thing.  On  the  other  hand,  if 
the  list  circulated  among  the  employers  is  tinged  with  slan- 
der, the  workingman  has  naturally  a  clear  right  of  action 
against  the  employers.  In  between  these  two  extremes,  it 
is  often  difficult  to  classify  a  blacklist.  "  Any  malicious  in- 
terference with  the  business  or  occupation,"  as  our  Court 
of  Appeals  has  said,  "  if  followed  by  damage,  is  an  action- 
able wrong."^^  This  is  a  safe  enough  guide  where  actual 
malice,  or  malice  in  fact,  is  evident  in  the  case,  as  it  was 
in  our  Maryland  case ;  but  the  concept  of  malice  in  law, 
though  often  used  by  the  courts  in  their  reasoning  in  black- 
listing cases,  is  no  longer  of  much  practical  use  because  of 
its  extreme  elasticity.  It  would,  perhaps,  be  sufficiently 
correct  to  say  that  when  a  blacklist  is  used  against  striking 
employees  or  to  gain  a  legitimate  interest  of  the  employ- 
ers, it  is  legal,  but  when  it  is  used  merely  as  a  disciplinary 


30  Willner  v.  Silverman,  109  Md.  341 ;  71  Atl.  063 ;  24  L.  R.  A. 
(N.  S.)  895  (1910). 

31  Ibid. 


l8l]  THE   LABOR   UNION  35 

measure  against  an  employee  and  to  attain  no  advantage 
for  the  employer,  it  is  an  actionable  tort  against  the  indi- 
vidual workingman.     That,  at  least,  is  the  Maryland  law. 

This  careful  regard  of  the  courts  for  the  welfare  of  the 
individual  is  not  directed  strictly  towards  the  unions,  and 
is,  therefore,  perhaps  not  appropriate  in  this  place ;  but  so 
intimately  is  the  blacklist  related  as  a  counter  measure  to 
the  strike  and  boycott  that  the  unions  have  really  been 
much  strengthened  by  this  judicial  curtailment  of  the  em- 
ployer's powers.  It  seems,  in  most  cases,  that  the  decrees 
of  the  courts  have  been  adequate  enough  for  the  protection 
of  the  laborers,  but  the  public  has  not  been — or,  perhaps, 
it  is  more  correct  to  say,  the  unions  have  not  been — suf- 
ficiently satisfied  with  this  judicial  protection;  and  in  many 
states  laws  have  been  passed  prohibiting  employers  from 
circulating  blacklists.  Innocent  information  is  not  prohib- 
ited, so  that  these  statutes  have  uniformly  been  held  con- 
stitutional. Maryland  has  no  such  statute,  but  from  the 
tendencies  of  the  court  in  the  case  of  Willner  v.  Silver- 
man^^ such  a  statute  if  it  could  be  made  effective  would 
seem  desirable,  especially  from  the  union  standpoint. 

At  the  possible  risk  of  digression,  I  want  to  call  attention 
here  to  perhaps  the  greatest  encouragement  that  has  yet 
been  extended  to  unionism  by  legal  enactment.  With  no 
special  reference  at  present  to  Maryland  law,  it  is  yet  in- 
dicative of  a  tendency  in  the  law  which  may  at  some  future 
time  be  realized.  There  have  been  several  state  statutes 
and  one  federal  statute  relating  to  interstate  commerce 
which  have  declared  criminally  illegal  the  discharge  or 
threatened  discharge  of  employees  because  of  membership 
in  any  labor  organization.  Practically  all  of  these  statutes 
have  been  held  unconstitutional  as  depriving  the  employer 
of  the  right  of  contract  without  due  process  of  law ;  but  in 
the    Supreme    Court^^   three    forcible    dissenting   opinions 

82  Ibid. 

33  Adair  v.  U.  S.,  208  U.  S.  161 ;  52  L.  ed.  436;  and  see  note  in  this 
edition  on  State  cases ;  Coppage  v.  Kansas,  236  U.  S.  i ;  59  L.  ed.  441. 


36  THE   LABOR   LAW   OF    MARYLAND  [182 

were  filed  against  this  position,  the  one  by  Justice  Holmes 
in  the  earlier  case  in  particular  being  most  suggestive  of 
future  modifications  of  the  severity  of  the  doctrine  under- 
lying the  majority  opinion. 

The  closed  shop  contract  is  the  highest  attainment  of 
trade  unionism.  It  is  still  a  method,  a  means  to  an  end, 
but  it  smacks  more  of  the  ultimate  desideratum  than  do 
any  of  the  other  activities  of  the  unions.  Once  the  closed 
shop  is  attained  in  an  industry,  collective  bargaining  has 
achieved  its  most  valuable  guarantee;  and  collective  bar- 
gaining is  a  primary  goal  of  unionism.  Unions,  according 
to  their  advocates  and  publicists,  are  striving,  not  for  the 
elevation  of  the  workingman  above  his  rightful  economic 
condition,  but  for  the  absolute  equality  of  the  laborer  with 
the  capitalist  and  the  landlord  as  a  claimant  in  distribution. 
All  the  phenomena  of  unionism  which  we  have  considered 
are  indications  of  this  ambition — the  strike  and  boycott,  the 
weapons  of  the  militant,  struggling  union ;  the  agreement 
against  non-union  material,  a  defense  of  the  victorious 
union;  and  the  closed  shop,  the  security  of  the  old  and 
firmly  established  union.  It  is  therefore  obvious  that  the 
law  of  the  closed  shop  agreement — more  often  an  agree- 
ment than  a  formal  contract — will  be  somewhat  different 
from  that  of  the  other  methods  of  unionism.  Yet,  in  study- 
ing the  agreement  against  non-union  materials  and  the 
strike  against  the  non-union  workingman,  a  foundation  has 
been  laid  down. 

The  law  seems  to  be  that  an  agreement  between  one  em- 
ployer and  a  labor  union  that  he  will  employ  only  such 
laborers,  members  of  that  union,  as  the  union  shall  specify 
is  completely  enforceable.  Equally  unenforceable  is  an 
agreement  on  the  same  point  between  all  the  branches  of 
a  labor  union  within  a  certain  territory  and  all  the  em- 
ployers of  that  trade  within  the  same  territory.^*  Between 
these  two  extremes  lies  the  debatable  ground.  It  is  as- 
sumed, of  course,  in  this  discussion  that  the  benefit  of  the 

3*  McCord  V.  Thompson-Starrett  Co.,  198  N.  Y.  587 ;  92  N.  E.  1090. 


183]  THE   LABOR   UNION  37 

agreement  is  material  to  the  two  parties  and  that  there  is  no 
malice.  The  law  as  to  this  has  been  sufficiently  threshed 
out.^^  The  law,  then,  with  respect  to  the  closed  shop  agree- 
ment  is  precisely  that  of  the  common  law  of  contracts  in 
restraint  of  trade,  that  of  conspiracies  in  unreasonable  or 
indirect  restraint  of  trade.  Where  the  agreement  between 
the  employer  and  the  union  is  too  monopolistic  within  too 
comprehensive  a  territory — of  course  much  smaller  than  the 
unreasonable  district  in  trade  monopolies — the  agreement  is 
an  unreasonable  restraint  upon  the  individual's  freedom  of 
contract  and  the  competition  of  the  non-union  laborer  is 
too  completely  stifled.  This  is  the  opinion  of  the  courts.  In 
the  eyes  of  the  economist — and  the  argument  seems  sound 
— a  trade  union  with  complete  monopoly  of  the  labor  in  its 
district  is  the  acme  of  perfection  of  competition,  of  com- 
petition among  the  elements  of  production. 

The  courts  seem  to  have  been  led  into  this  distinction  as 
to  extent  of  monopoly  in  a  rather  haphazard  manner,  if 
not  absolutely  against  their  will.  The  law  of  the  closed 
shop  has  been  most  fully  developed  in  New  York.  In  the 
earliest  case^^  the  court  held  invalid  a  contract  between  a 
brewers'  association  and  a  labor  union  providing  that  no 
employee  of  the  association  should  be  allowed  to  work  for 
longer  than  a  specified  time  without  becoming  a  member 
of  the  union.  In  the  second  case,^^  after  several  appeals 
and  reversals,  the  court  held  valid  a  contract  between  an 
employer  and  a  labor  union  providing  for  an  absolutely 
closed  shop.  In  this  case  the  court  specifically  stated  that 
the  early  case  was  not  overruled.  The  critics  immediately 
emphasized  the  conflict.  The  only  way  of  resolving  the 
conflict  was  to  develop  the  distinction  between  the  single 
employer  in  the  enforceable  agreement  and  the  association 

3s  Cases  concerning  the  closed  shop  in  which  this  point  is  devel- 
oped are:  Berry  v.  Donovan,  188  Mass.  353;  5  L.  R.  A.  (N.  S.)  899; 
Kissan  v.  U.  S.  Printing  Co.  of  Ohio,  199  N.  Y.  76;  92  N.  E.  214; 
Hoban  v.  Dempsey,  104  N.  E.  717  (Mass.). 

3«  Curran  v.  Galen,  152  N.  Y.  33;  37  L.  R.  A.  802  (1897). 

"Jacobs  V.  Cohen,  183  N.  Y.  207;  2  L.  R.  A.  (N.  S.)  292  (1905). 


38  THE   LABOR   LAW   OF    MARYLAND  [184 

in  the  unenforceable.  This  distinction  was  developed  in 
subsequent  cases,  and  has  been  accepted  as  the  rule  in  cases 
in  other  states.^^  Naturally,  what  is  lawful  in  this  respect 
for  the  labor  unions  is  lawful  for  the  employers,  and  there 
are  several  cases  in  which  open  shop  agreements  between 
employers  aimed  directly  at  the  unions  have  been  held 
legal.^® 

It  might  be  profitable  to  present  a  brief  and  concise 
resume  and  to  draw  some  conclusions  from  the  Maryland 
law  of  labor  combinations  before  proceeding  to  the  specific 
statutes  which  are  based  upon  or  closely  allied  to  the  exist- 
ence of  labor  unions.  Since  the  statute  of  1884  labor  or- 
ganizations are  not  per  se  conspiracies.  An  act  which  is 
lawful  for  an  individual  is  therefore  perfectly  lawful  for 
a  union  to  undertake,  with  the  one  possible  exception,  most 
apparent  in  the  law  of  picketing,  that  in  certain  circum- 
stances numbers  themselves  may  be  a  menace  to  the  peace 
of  society.  However,  there  is  growing  up  in  the  law  of 
torts  a  theory  which  is  finding  great  application  in  labor 
cases  that  an  act,  though  conducted  for  perfectly  legitimate 
ultimate  ends  and  in  a  perfectly  lawful  manner,  may  yet  be 
actionable  if  immediately  inspired  by  an  improper  motive. 
Thus  a  strike  lawfully  conducted  to  strengthen  the  union 
may  still  constitute  a  tort  against  a  non-union  man  if  its 
motive  is  to  secure  his  discharge.  On  this  proposition  of 
law  is  based  the  rule  that  the  activities  of  labor  organiza- 
tions must  have  the  direct  purpose  of  improving  the  wel- 
fare of  the  members  of  the  association,  and  may  only  inci- 
dentally, indirectly  and  perhaps  unsubstantially  affect  a 
third  uninterested  party. 

But  these  generalities  do  not  help  us  much  to  appreciate 
the  trend  of  the  Maryland  decisions.  The  law  of  the  union 
is  in  its  present  state  of  uncertainty  because  of  conflict  of 

»8  Connors  v.  Connoly,  86  Conn.  641,  45  L.  R.  A.  564;  and  note  in 
L.  R.  A. 

39  Hitchman  Coal  &  Coke  Co.  v.  Mitchell,  172  Fed.  963 ;  Goldfield 
Consol.  Mines  Co.  v.  Goldfield  Miners'  Union,  159  Fed.  500. 


1 85]  THE  LABOR   UNION  39 

two  generalities :  "  improving  the  welfare  of  the  members  " 
and  the  indirectness  with  which  the  interest  of  a  third  party 
is  affected.  The  courts  until  very  recently  have  been  in- 
clined by  their  training,  by  their  leaning  in  the  direction  of 
the  individualistic  philosophy  of  freedom,  towards  protect- 
ing the  rights  of  the  third  party,  no  matter  how  incidentally 
they  may  be  infringed  upon.  It  is  fair  to  say  that  they  did 
not  truly  understand  the  significance  of  unionism,  the  at- 
tempt to  secure  economic  equality  by  strengthening  the  bar- 
gaining power  of  the  laborers.  Maryland  law,  of  which  the 
last  case  was  decided  in  1909,  is  still  in  this  stage.  In  the 
Lucke  case  the  court  recognized  no  rights  of  the  union  to 
secure  employment  for  its  own  members,  but  considered 
merely  the  technical  right  of  the  individual.  In  the  Adt 
case  the  court  might  have  justified  its  decision  on  certain 
forcible  methods  of  the  union,  but  it  contents  itself  with 
unconditionally  outlawing  the  boycott  no  matter  what  the 
actual  economic  conditions  may  be.  Precedent  is  still  su- 
preme. In  the  Willner  case,  the  last  word  on  the  subject, 
the  court  might  possibly  be  said  to  have  taken  subconscious 
cognizance  of  economic  forces,  but  in  reality  the  decision 
in  favor  of  the  unions  was  reached  by  purely  individualis- 
tic reasoning.  It  may  be  hoped  in  view  of  certain  tendencies 
manifesting  themselves  in  other  lines  of  decisions  that  the 
Court  of  Appeals  will  in  its  next  union  case  take  a  broader 
view  of  the  province  of  law,  but  as  the  decisions  now  stand, 
though  the  results  in  all  these  cases  are  perhaps  justifiable, 
the  law  is  not  in  a  satisfactory  condition  and  Maryland  does 
not  deserve  a  position  with  the  more  advanced  states. 

Statutes  Relating  to  Unionism. — The  union  label  is  now 
recognized  as  one  of  the  useful,  if  not  necessary,  instru- 
ments of  organized  labor.  The  law  on  the  subject  is  rather 
difficult  and  the  decisions  most  conflicting;  but  the  Mary- 
land legislature  of  1892  has  relieved  us  of  the  necessity  of 
anything  more  than  a  cursory  sketch  of  the  unwritten  law. 
In  the  earliest  cases  the  union  label  was  defended  by  its 
advocates  as  a  trade-mark.    The  majority  of  decisions,  how- 


40  THE   LABOR   LAW    OF   MARYLAND  [l86 

ever,  held  that  inasmuch  as  the  union  is  not  the  owner, 
manufacturer  or  seller  of  goods  to  which  the  label  is  at- 
tached, the  label  is  not  a  valid  trade-mark  nor  entitled  to 
protection  or  registration  as  such.*°  Rebuffed  by  the  com- 
mon law  courts,  the  unions  strove  in  equity  proceedings  to 
enjoin  the  counterfeiting  and  unauthorized  use  of  the  label. 
Here  they  were  more  successful,  the  courts  viewing  the 
label  as  union  property.  The  courts  declared  that  the  con- 
cept of  property  should  not  be  fixed,  but  progressive,  de- 
veloping with  the  growing  society.  Surely,  therefore,  the 
label  is  property.  Witness  the  reasoning  in  a  Maryland 
case  in  a  lower  court: 

"The  object  and  effect  of  this  label,  as  used  by  plaintiffs 
on  their  associates,  is  to  increase  the  value  of  their  labor. 
...  It  will  not  be  denied  that  every  freeman  has  a  prop- 
erty right  in  his  own  labor.  .  .  .  From  this  broad  principle 
it  is  easy  to  develop  the  particular  proposition,  that  an  asso- 
ciation of  men  who  combine  for  the  purpose  of  increasing, 
by  legitimate  means,  the  general  demand  for  their  common 
labor,  have  a  property  right  in  whatever  lawful  instrumen- 
tality they  can  succeed  in  creating  and  controlling  for  that 
purpose. 

"If  the  combination  for  that  purpose  be  legitimate,  and 
the  label  itself  as  used  be  a  lawful  instrumentality  and  con- 
tains no  fraudulent  misrepresentation,  the  label  is  entitled 
to  the  recognition  of  a  court  of  equity  as  a  property  right, 
and  any  fraudulent  imitation  of  it  will  be  suppressed."*^ 
The  reasoning  here  employed  is  valid  and  convincing,  but 
nevertheless  this  opinion  is  in  conflict  with  most  courts  of 
the  country  which  have  refused  to  view  the  label  as  prop- 
erty in  the  absence  of  statute. 

,  Not  satisfied  with  this  tendency  in  the  Maryland  law — 
for,  of  course,  it  was  not  authority  since  the  case  did  not 
reach  the  Court  of  Appeals — the  unions  caused  the  enact- 

*o  See  Martin,  Law  of  Labor  Union,  pp.  423-429,  for  a  more  de- 
tailed discussion  with  references. 

<i  Cigar  Makers'  Union  of  Balfo.  v.  Link.  Baltimore  Circuit 
Court,  1886;  reported  in  29  L.  R.  A.  202,  note. 


187]  THE   LABOR   UNION  4 1 

ment  of  the  law  referred  to  above,  legalizing  and  protect- 
ing union  labels.*^  The  first  section  declares  that  "  when- 
ever any  .  .  .  union  of  workingmen  have  adopted,  or  shall 
hereafter  adopt  for  their  protection  any  label  .  .  .  announc- 
ing that  goods  to  which  such  label  .  .  .  shall  be  attached, 
.were  manufactured  by  a  member  or  members  of  such  union, 
it  shall  not  be  lawful  for  any  person  or  corporation  to  coun- 
terfeit or  imitate  such  label ;"  and  following  sections  de- 
clare such  counterfeiting  a  criminal  proceeding,  enjoinable 
by  courts  of  equity,  and  cause  for  damages.  Registration 
of  the  label  is  also  provided  for.  No  case  seems  to  have 
arisen  under  this  statute ;  but  in  other  states  similar  statutes 
have  been  attacked  as  class  legislation,  but  without  excep- 
tion they  have  been  upheld.*^ 

There  is,  moreover,  on  the  statute  books  a  law  which  was 
passed  in  the  interests  of,  if  not  as  a  direct  political  plum 
.for,  the  labor  unions  which  is  absolutely  and  undeniably 
unconstitutional.  It  is  the  law^*  which  directs  the  "public 
printer  "  to  affix  to  all  public  printing  the  label  of  the  Inter- 
national Typographical  Union.  Precisely  similar  ordinances 
and  acts  have  been  held  unconstitutional  in  many  Western 
States  as  in  clear  violation  of  the  guarantee  by  the  Four- 
teenth Amendment  to  the  federal  Constitution  of  the  secur- 
ity of  property  under  the  due  process  of  law  clause.*^ 
,  The  final  problem  which  the  state  has  to  solve  with  ref- 
erence to  unionism  may  under  certain  conditions  become 
the  most  important  of  all.  It  is  the  reconciliation  of  the 
two  quarrelling  factions  in  any  labor  dispute  or  the  pre- 
.vention  of  the  dispute  itself.  There  are  two  main  classes 
into  which  legislation  of  this  sort  falls,  arbitration  and  con- 
ciliation, and  each  of  these  is  again  sub-divided  into  com- 
pulsory and  voluntary  methods. 
,    In  arbitration  both  sides,  labor  and  capital,  appear  before 

*2  Acts  1892,  Ch.  357 ;  Code  1912,  Art.  27,  Sees.  50-55. 
■*3  See  note  in  39  L.  R.  A.  (N.  S.)  1190. 
**  Code  1911,  Art.  78,  Sec.  9. 

*5  See  Miller  v.  Des  Moines,  23  L.  R.  A.  (N.  S.)  815  (Iowa),  and 
note. 


42  THE   LABOR   LAW   OF   MARYLAND  [l88 

an  arbitral  board,  usually,  though  not  always,  composed  of 
a  representative  of  each  contestant  and  a  non-partisan  chair- 
man, and  present  their  case.  The  board  deliberates  and 
hands  down  a  binding  decision.  If  reference  to  an  arbitral 
board  is  compelled  by  the  State,  the  arbitration  is  compul- 
sory ;  if  reference  to  the  board  is  dependent  upon  the  agree- 
ment of  the  parties  to  the  dispute,  the  arbitration  is  volun- 
tary. Purely  voluntary  arbitration  is  rarely  found  in  present 
day  statute  books,  for  it  has  been  found  that  state  activity 
is  entirely  unprofitable  in  this  method  of  industrial  peace. 
Compulsory  arbitration  has  been  tried  in  Australia  with 
varying  results  in  the  different  states.  It  suffers  from  the 
fact  that  there  is  no  settled  theory  of  wages  discovered  as 
yet  upon  which  the  board  can  render  its  decision,  which 
must  accordingly  be  a  compromise,  a  result  not  too  favor- 
able to  the  principle  of  collective  bargaining.  Compulsory 
arbitration  would  possibly  be  unconstitutional  in  the  United 
States.*" 

Midway  between  arbitration  and  conciliation  as  a  means 
of  industrial  peace  is  a  hybrid  form  of  endeavoring  to  force 
peace  by  an  impartial  investigation  of  the  dispute  and  a 
full  publication  of  the  results  of  the  investigation,  both 
facts  and  conclusions.  By  providing  publicity,  this  method 
seeks  to  inform  public  opinion  of  the  true  state  of  affairs, 
and  by  directing  it  against  one  contestant,  to  compel  this 
contestant  to  yield  in  the  controversy.  This  method  usually 
occurs  in  legislation  in  company  with  voluntary  arbitration 
or  conciliation  and  smacks  a  little  of  each  of  these.  It  dif- 
fers from  the  compulsory  methods  in  that  it  relies  upon 
the  force  of  public  opinion  rather  than  on  the  physical  sanc- 
tion of  the  State.  Properly  administered  it  should  be 
effective. 

Compulsory  conciliation,  or  perhaps  more  correctly  com- 
pulsory investigation,  is  a  logical  development  of  the 
method  of  publicity.    It  seeks  to  prevent  industrial  unrest 

^  <8  See,  however,  Wilson  v.  New  (decided  March  17,  1917)  as  lend- 
ing some  credence  to  the  contrary  view. 


189]  THE   LABOR  UNION  43 

rather  than  to  reconcile  two  contending  parties.  As  suc- 
cessfully employed  in  Canada,  workmen  and  employers 
before  declaring  a  strike  or  lock-out  must  appear  before  a 
conciliation  board  and  state  their  case  in  full.  This  board 
then  gives  its  decision  and  award  which,  however,  is  not 
binding  upon  either  party:  the  strike  or  lock-out  may  be 
consummated  as  though  there  were  no  decision.  The  find- 
ings of  the  board  have,  however,  been  meanwhile  pub- 
lished, and  public  opinion  is  relied  upon  to  prevent  the 
party  to  whom  the  decision  was  adverse  from  carrying  out 
its  intent  to  strike  or  lock  out.  This  scheme  seems  the  one 
most  suited  to  an  American  State  and  its  success  in  Canada 
testifies  to  its  worth. 

The  Maryland  laws  belong  to  the  class  of  voluntary  arbi- 
tration laws  and  one  of  them  has  the  added  provision  for 
an  impartial  investigation.  The  first  law,*^  passed  in  1878, 
although  it  does  not  explicitly  refer  to  strikes,  provides  that 
''  whenever  any  controversy  shall  arise  between  any  corpor- 
ation incorporated  by  this  State  in  which  the  State  may  be 
interested  as  a  stockholder  or  creditor,  and  any  person  in 
the  employment  of  such  corporation,  which,  in  the  opinion 
of  the  board  of  public  works,  shall  tend  to  impair  the  use- 
fulness or  prosperity  of  such  corporation,  the  board  of  pub- 
lic works  .  .  .  shall  have  the  riglit  to  propose  to  the  parties 
to  said  controversy  that  the  same  shall  be  settled  by  arbi- 
tration " ;  and,  upon  the  consent  of  the  parties  to  the  arbi- 
tration, the  board  is  given  the  power  to  make  a  conclusive 
award.  This  law  is  only  of  antiquarian  interest  and,  as  far 
as  I  have  been  able  to  ascertain,  has  never  been  made  use 
of  in  a  labor  dispute.  It  is  of  the  most  inadequate  type  of 
this  kind  of  legislation. 

The  present  law  was  first  enacted  in  1904,  but  was  radi- 
cally amended  by  an  addition  in  1916.*^  The  early  law 
gave  to  the  then  Chief  of  the  Bureau  of  Statistics  and  In- 

*''  Laws  1878,  Ch.  379;  Code  1912,  Art.  7. 

"Laws  1904,  Ch.  671;  Code  1911,  Art.  89,  Sees.  3-11,  as  amended 
by  Laws  1916,  Ch.  406. 


44  THE   LABOR   LAW   OF    MARYLAND  [19O 

formation  power  to  mediate,  arbitrate  or  investigate. 
Thoug'h  still  on  the  books,  the  provisions  of  this  law  have 
been  repeated  in  a  form  so  much  more  efficient  in  the  1916 
amendment  that  the  early  law  should  be  practically  super- 
seded. No  description  of  this  amendment  could  be  more 
clear  or  concise  than  the  text  itself. 

"  It  shall  be  the  duty  of  the  State  Board  of  Labor  and 
Statistics  to  do  all  in  its  power  to  promote  the  voluntary 
arbitration,  mediation  and  conciliation  of  controversies  and 
disputes  between  employers  and  employes,  and  to  avoid  re- 
sort to  lockouts,  boycotts,  blacklists,  discriminations  and 
legal  proceedings  in  or  arising  out  of  such  controversies  and 
disputes  and  matters  of  employment.  In  pursuance  of  this 
duty,  the  said  board  may,  whenever  it  deems  advisable,  but 
subject  to  the  approval  of  the  Governor,  appoint  boards  of 
arbitration  for  the  consideration  and  settlement  of  such  con- 
troversies and  disputes,  and  may  provide  for  the  necessary 
expenses  of  such  arbitration  boards,  and  for  such  reason- 
able compensation  to  the  members  serving  thereon  as  the 
said  board  may  deem  proper,  not  exceeding,  however,  the 
sum  of  five  dollars  per  day  for  each  member  for  each  day 
during  which  such  member  is  engaged  in  work  upon  said 
arbitration  boards.  The  said  board  shall  prescribe  rules  of 
procedure  for  such  arbitration  boards,  and  the  said  arbitra- 
tion boards  shall  have  the  power  to  cotiduct  investigations 
and  hold  hearings,  to  summon  witnesses,  and  enforce  their 
attendance  through  the  ordinary  processes  of  law  in  the 
cities  and  counties  in  which  such  arbitration  boards  may 
meet,  subject  to  all  the  penalties  for  non-attendance  to 
which  witnesses  in  ordinary  civil  cases  are  subject,  and  in 
like  manner  may  require  the  production  of  books,  docu- 
ments and  papers  and  may  administer  oaths,  all  to  the  same 
extent  that  such  powers  are  possessed  and  exercised  by  the 
civil  courts  of  the  State;  and  said  arbitration  boards  shall 
make,  report  and  publish  findings  for  the  settlement  of  such 
controversies  and  disputes.  The  said  Board  of  Labor  and 
Statistics  shall  itself  have  like  power  to  conduct  investiga- 


ipi]  THE    LABOR    UNION  45 

tions  and  hold  hearings,  summon  and  enforce  the  attend- 
ance of  witnesses,  administer  oaths,  require  the  production 
of  books,  documents  and  papers,  and  make  and  pubhsh  re- 
ports and  findings  with  respect  to  any  and  all  matters  cov- 
ered by  this  section.  Subject  to  the  approval  of  the  Gover- 
nor, the  board  may  appoint  and  designate  a  deputy,  and  fix 
his  compensation,  who  shall  be  known  as  the  chief  mediator, 
and  who,  together  with  any  assistants  who  may  be  assigned 
by  the  board,  shall  have  in  charge  the  execution  of  the  pro- 
visions of  this  section,  under  the  direction  and  supervision 
of  the  board.  The  chief  mediator  may  act  upon  any  board 
of  arbitration,  but  in  such  event  he  shall  receive  no  com- 
pensation therefor  in  addition  to  his  ordinary  salary."  This 
law,  providing  as  it  does  for  arbitration,  and  if  that  fails 
for  investigation  and  publication  with  very  efficient  means 
of  administration,  is  about  as  good  a  law  as  could  be  hoped 
for.  It  might  be  argued,  and  the  author  does  believe,  that 
compulsory  conciliation  would  be  a  more  effective  means  of 
industrial  peace,  but  the  law  as  it  stands  is  adequate.  If  it 
fails  in  its  purpose,  it  will  be  because  of  the  inevitable  weak- 
ness of  a  law  depending  on  public  opinion  for  its  sanction 
or  because  of  a  slackness  in  its  administration. 


CHAPTER  III 
The  Workmen's  Compensation  Law 

History. — The  Workmen's  Compensation  Law  occupies  a 
peculiar  place  in  the  study  of  the  labor  law.  It  differs  from 
the  law  considered  in  the  last  chapter  in  that  it  is  the  result 
of  a  definite  policy  of  state  activity  and  is  not  a  growth  of 
the  common  law.  It  differs  from  the  statute  law,  which 
will  be  the  subject  of  the  following  chapters,  in  that  it  is 
not  an  addition  to,  but  an  amendment  of  the  common  law. 
It  is  the  only  instance  we  have  in  the  field  of  Maryland 
labor  law  of  a  deliberate  wholesale  repeal  of  a  whole  sec- 
tion of  common  law  principles  which  were  conceived  to  be 
antiquated  and  unsuited  to  modern  industrial  conditions, 
and  the  substitution  for  them  of  a  new  statutory  system  of 
law. 

Maryland's  experience  with  workmen's  compensation 
laws  has  been  peculiar  and  somewhat  disconcerting.  It  was 
the  first  State  in  America  to  adopt  this  now  almost  univer- 
sal social  legislation,  but  it  was  decidedly  not  in  the  van  in 
adopting  a  really  satisfactory  law,  if  indeed  the  present 
law  is  entirely  satisfactory.  Its  priority  in  the  field  is  per- 
haps explained  by  the  horribly  inequitable  degree  to  which 
its  law  of  master  and  servant,  especially  the  harsh  doctrines 
of  assumption  of  risk  and  fellow-servant  negligence,  had 
developed. 

The  first  act  of  1902,^ "  conceived  in  ignorance  and  quickly 
forgotten,"  was  an  act  to  create  a  Cooperative  Insurance 
Fund.  The  law  was  limited  in  scope,  applying  only  to 
"coal  or  clay  mining,  quarrying,  steam  or  street  railroads 
.  .  .  and  any  incorporated  town,  city  or  coimty  engaged  in 
the  work  of  constructing  any  sewer,  excavation  or  other 


1  Laws  1902,  Ch.  139, 

46 


193]  "^^^  workmen's  compensation  law  47 

physical  structure,  or  the  contractors  of  any  such  town,'* 
etc.,  an  estimated  coverage  of  about  ten  thousand  employ- 
ees.^ The  act  was  what  may  be  called  a  pseudo-elective 
compensation  scheme,  which  will  be  treated  at  greater 
length  in  the  following  section.  It  provided  that  the  em- 
ployers covered  should  be  liable  for  "  death  or  injury  caused 
by  the  negligence  of  the  employer  or  by  that  of  any  servant 
or  employee  of  such  employer  "  unless  they  contributed  to 
the  insurance  fund  which  was  provided  for  by  the  statute. 
Half  of  these  contributions,  the  amounts  of  which  were  set 
forth  in  the  act,  might  be  deducted  from  the  wages  of  the 
employees.  The  only  insurance  provided  was  a  benefit  of 
one  thousand  dollars  for  the  death  of  every  employee  oc- 
curring "  in  the  course  of  employment  and  by  causes  aris- 
ing therein."  No  provision  was  made  for  compensation  for 
permanent  or  temporary  injury,  and  in  this  respect  the 
workman  seemed  worse  off  than  before  the  passage  of  the 
law.  The  only  principle  of  compensation  which  seems  to 
have  been  accepted  in  full  was  the  liability  of  the  employer 
for  the  faults  of  his  employees.  The  law  was  of  question- 
able value  as  a  piece  of  social  legislation ;  its  real  value  was 
as  an  opening  wedge  for  future  enactments. 

This  act  remained  in  force  for  nearly  two  years,  during 
which  time  it  seems  to  have  been  well  administered,  though 
only  five  death  benefits  were  paid  out  of  it.  The  fund  was 
protected  from  insolvency  by  the  mutual  insurance  feature 
which  was  borrowed  from  Germany — practically  the  only 
sound  feature  which  was  obtained  from  the  extensive  ex- 
perience of  European  countries.  In  1904,  however,  in  a 
case  in  the  Court  of  Common  Pleas  of  Baltimore  City' — 
the  act  never  came  before  the  Court  of  Appeals — the  law 
was  held  unconstitutional,  not  as  abrogating  the  constitu- 
tional rights  of  the  employer,  as  we  would  generally  expect 
to-day,  but  as  denying  to  the  employee  a  jury  trial  when  he 

2  See  G.  E.  Barnett  in  16  Quarterly  Journal  of  Economics,  p.  591. 

3  Franklin  v.  United  Railways  and  Electric  Co.,  reported  in  the 
Daily  Record  for  April  29,  1904. 


48  THE   LABOR   LAW   OF    MARYLAND  [194 

wished  to  recover  for  the  negligence  of  the  employer.  "  The 
act,"  said  the  court,  "embraces  cases  where  the  death  had 
been  caused  by  the  negligence  of  the  employer,  cases  where 
there  would  have  been  clear  right  of  action  in  the  courts 
imder  existing  law.  It  enacted  that  employers  who  had 
made  the  payments  provided  in  the  act  should  by  such  pay- 
ments be  exempted  from  further  liability.  The  effect  was 
...  to  take  away  from  citizens  a  legal  right  which  they 
had  theretofore  enjoyed,  and  which  could  be  enforced  by 
them  in  the  courts,  and  also  to  deny  them  a  right  to  have 
their  cases  heard  before  a  jury."  The  court  seems  plainly 
in  error  in  the  first  part  of  its  decision,  for  it  was  decided 
as  early  as  the  case  of  Munn  v.  Illinois*  that  "  a  person  has 
no  property,  no  vested  interest,  in  any  rule  of  common  law. 
.  .  .  Indeed,  the  great  office  of  statutes  is  to  remedy  defects 
in  the  common  law  as  they  are  developed,  and  to  adapt  it 
to  the  changes  of  time  and  circumstances."  As  to  the  mat- 
ter of  a  jury  trial  the  question  is  more  complex  and  diffi- 
cult. Suffice  it  to  say  that  jury  trial  is  not  abrogated  if 
the  act  is  a  just  exercise  of  the  police  power;  and,  more- 
over, most  courts  in  the  case  of  pseudo-elective  acts  have 
refused  to  take  cognizance  of  the  implied  coercion  in  these 
acts  and  have  decided  that  where  those  affected  have  con- 
sented to  be  governed  by  the  law  there  is  no  deprivation 
of  due  process.  That  is  to  say  that  where  parties  have  con- 
sented to  try  their  case  without  the  intervention  of  the  jury, 
even  though  there  is  insidious,  hidden  coercion  pressing 
upon  them,  there  is  no  infringement  of  their  right  to  a  jury 
trial.  Such  argument  is  of  little  value  and  is  perhaps  con- 
trary to  Maryland  precedent,  but  the  courts,  in  spite  of 
criticism,^  have  often  used  this  species  of  reasoning. 
,  In  1910  the  void  created  by  this  decision  was  filled  with 
a  new  cooperative  relief  fund,^  but  even  further  limited 

*94U.  S.  1 13-134. 

6  See  Freund,  Constitutional  Status  of  Workmen's  Compensation, 
m  2  American  Labor  Legislation  Review,  43  (1912).  In  the  present 
(1917)  Maryland  law  the  servant  has  reserved  to  him  the  right  of  a 
civil"  suit  when  the  employer  is  negligent. 

«  Laws  1910,  Ch.  153,  as  amended  by  Laws  1912,  Ch.  445. 


195]  THE  workmen's  compensation  law  49 

this  time  to  clay  and  coal  mining  in  Alleghany  and  Garrett 
counties.  The  act  provided  a  compulsory,  cooperative  in- 
surance scheme ;  but  the  constitutional  difficulty  caused  by 
the  earlier  decision  was  obviated  by  allowing  the  employee 
to  sue  in  the  courts  provided  he  renounced  all  and  had 
accepted  no  benefits  from  the  Relief  Fund.  Another  con- 
stitutional question  was  avoided  by  calling  the  contributions 
of  the  employers  and  employees  "taxes,"  thereby  resting 
the  compulsory  power  exercised  by  the  State  upon  its  tax- 
ing rather  than  upon  its  police  power.  The  advisability  of 
the  change  may,  however,  be  considered  doubtful — a  leap- 
ing from  the  frying  pan  into  the  fire,  for  here  the  constitu- 
tional provision  against  levying  a  tax  for  a  private  purpose 
stands  rather  obtrusively  in  the  way,  but  it  may  be  said  here 
that  such  a  tax  has  been  upheld  in  a  Western  court  as  ana- 
logous to  a  license  tax.'' 

This  act,  in  spite  of  the  constitutional  change  of  face, 
was  quite  an  improvement  over  the  former  law  from  a 
social  viewpoint.  It  provided,  as  intimated,  for  a  fund 
equally  contributed  by  employer  and  employee — though  for 
administrative  purposes  the  employer  paid  the  whole  tax — 
which  was  put  into  the  hands  of  the  county  commissioners 
of  the  two  counties  to  administer.  The  insurance  for  "  in- 
juries sustained  in  the  discharge  of  duty"  and  for  death 
are  far  from  sufficient,  but  there  is  a  great  increase  over 
that  provided  in  the  original  act.  $1500  is  granted  to  de- 
pendents upon  the  death  of  the  wage  earner ;  total  disability 
entitles  the  injured  to  $750  plus  one  dollar  a  day,  excluding 
Sunday,  for  twenty-six  weeks,  about  $180  additional ;  par- 
tial disability  entitles  him  to  $375  with  the  same  addition ; 
and  temporary  disability  to  the  dollar  a  day  benefit  for 
twenty-six  weeks.  The  waiting  time  in  all  cases  is  one 
week.  Although  the  law  provides  for  the  payment  of  all 
benefits  in  lump  sums,  the  legislators  recognized  the  possi- 

■^See  State  ex  rel.  Davis-Smith  Co.  v.  Clausen  (Wash.),  117  Pac. 
iioi.  The  Maryland  law  was  upheld  in  analogy  to  this  case,  see  128 
Md.  564. 


50  THE   LABOR   LAW   OF    MARYLAND  [196 

ble  evil  of  this  method  and  strove  to  mitigate  it  by  consti- 
tuting the  county  commissioners  a  judicial  board,  first,  to 
determine  who  were  "  dependents  "  and,  second,  to  appoint 
bonded  personal  representatives  to  administer  the  reliefs 
granted  to  the  beneficiaries.  This  law  seems  to  have  been 
successful,  and  its  effectiveness  was  only  terminated  by  the 
passage  of  the  present  general  compensation  act. 

Again  in  1912  there  was  introduced  before  the  legislature 
a  Workmen's  Compensation  bill,  this  time  general  and  com- 
pulsory in  character.  When  the  bill  finally  emerged,  how- 
ever, it  had  been  completely  emasculated  and  converted  into 
a  harmless,  inactive  elective  compensation  law.^  This  pro- 
vided that  it  should  "be  lawful  for  any  employer  to  make 
a  contract  in  writing  with  any  employee  whereby  the  parties 
may  agree  that  the  employee  shall  become  insured  against 
accident  occurring  in  the  course  of  employment  which  re- 
sults in  personal  injury  or  death,  in  accordance  with  the 
provisions  of  this  act;  and  that  in  consideration  of  this  in- 
surance the  employer  shall  be  relieved  from  the  conse- 
quences of  acts  or  omissions  by  reason  of  which  he  would 
without  such  contract  become  liable."  Being  purely  elec- 
tive, no  constitutional  questions  could  arise  from  the  en- 
forcement of  this  act.  Moreover,  the  law  has  been  entirely 
inoperative  and  is  only  interesting  as  the  direct  forerunner 
of  the  present  law. 

The  act  of  1912  covered  all  injuries  "arising  out  of  and 
in  course  of  employment"  except  where  the  injury  "is  the 
result  of  the  employee's  intoxication,  or  wilful  and  deliber- 
ate act  or  deliberate  intention  to  produce  such  injury."  The 
dependents  are  defined  to  be  "widow,  widower,  father, 
mother,  son  or  daughter  "  unless  otherwise  provided.  Noth- 
ing is  said  with  regard  to  alien  dependents.  The  schedule 
of  benefits,  although  still  rather  meager,  is  again  an  im- 
provement over  the  191  o  Act,  and  is  again  topped  by  the 
present  act.     It  provides  for  a  death  benefit  of  thrice  the 

8  Laws  1912,  Ch.  837. 


197]  THE   workmen's    COMPENSATION    LAW  5  I 

annual  wages,  but  not  less  than  one  thousand  dollars;  in 
case  of  total  disability  for  a  benefit  of  at  least  fifty  per  cent 
of  the  wages  during  disability;  and  in  case  of  partial  dis- 
ability for  the  difiference  between  the  total  disability  benefit 
and  what  the  injured  man  can  earn.  The  waiting  time  is 
again  one  week.  The  administration  is  vested  in  the  par- 
ties to  the  contract,  but  the  insurance  commissioner  has  full 
powers  of  investigation.  In  case  of  any  dispute  as  to  award, 
a  board  of  arbitration  is  provided  for. 

These  three  early  laws  were  repealed  by  the  passage  of 
the  1914  Workmen's  Compensation  Law,^  which  embodied 
many  of  the  best  features  of  the  earlier  laws,  especially  of 
this  last  elective  Employers'  Liability  Law.  The  new  act, 
however,  is  such  an  advance  over  these  experiments  that  a 
comparison  between  them  is  hardly  profitable.  It  will  be 
better,  therefore,  carefully  to  examine  and  analyze  this  law 
as  a  piece  of  social  legislation  in  comparison  with  certain 
ideals  which  have  been  formulated  for  compensation 
schemes  and  in  comparison  with  the  various  compensation 
schemes  embodied  in  the  laws  of  other  states.  After  this 
study,  it  will  be  necessary  to  consider  the  legal  aspects  of 
the  act. 

The  Present  Law  as  Social  Legislation. — It  seems  hardly 
necessary  at  this  late  date  to  enter  upon  any  detailed  argu- 
ment with  reference  to  the  merits  and  demerits  of  work- 
ingmen's  compensation  laws.  It  is,  nevertheless,  almost 
impossible  to  begin  any  discussion  of  this  legislation  with- 
out at  least  some  short  summary  of  the  pros  and  cons  of 
the  question. 

The  objections  to  the  laws  are  based  upon  the  common 
law  individualistic  conceptions  of  responsibility.  An  indi- 
vidual, it  is  argued,  should  be  responsible  only  for  his  own 
fault  and  negligence.  By  the  common  law  the  employer 
must  supply  the  employee  with  a  reasonably  safe  place  to 
work  in,  reasonably  safe  materials  and  machines  to  work 

9  Laws  1914,  Ch.  800;  Code  1913,  Art.  loi. 


52  THE   LABOR   LAW   OF    MARYLAND  [198 

with,  and  reasonably  competent  fellow-servants  to  help  him 
in  his  work.  If  the  employer  complies  with  his  duties  and 
the  employee  is  nevertheless  injured,  the  loss  must  He  where 
it  falls,  for  on  entering  an  employment  the  employee  as- 
sumes the  risks  of  that  employment,  and  visualizing  the 
possibility  of  injury  demands  higher  wages  as  a  sort  of  in- 
surance. When  confronted  with  the  proposition  that  the 
average  workingman  is  by  nature  an  optimist  and  neglects 
or  is  unable  to  insure  himself,  the  individualist  shrugs  his 
shoulders  and  conveniently  washes  his  hands  of  the  improvi- 
dent laborer.  He  quite  as  conveniently  waves  aside  the  in- 
equality in  the  bargaining  power  of  the  two  factors,  and 
assumes  that  the  employee  is  as  capable  of  refusing  unde- 
sirable employment  as  the  employer  is  of  refusing  employ- 
ment to  the  too  pessimistic  employee.  The  common  law 
individualist,  however,  is  stronger  when  he  argues  against 
saddling  the  employer  with  the  burden  of  providing  com- 
pensation for  all  accidents  occurring  to  employees  arising 
out  of  their  employment  irrespective  of  cause.  This  posi- 
tion is  absolutely  invulnerable  unless  it  can  be  proved  that 
the  employer  is  in  a  position  to  shift  the  whole  cost  of  the 
compensation  to  the  trade  and  thence  to  society. 

The  arguments  for  compensation,  on  the  other  hand, 
attack  the  problem  most  successfully  from  the  opposite,  the 
social  point  of  view.  From  this  standpoint  the  indictment 
of  employer's  liability  is  complete.  Unfortunately,  we  have 
no  Maryland  statistics,  but  it  is  safe  to  assume  that  her  ex- 
perience is  not  materially  dififerent  from  that  of  other  States. 
In  the  first  place,  an  enormous  majority  of  the  industrial 
accidents  under  the  common  law  system  of  reparation  go 
absolutely  uncompensated.  Out  of  a  total  of  694,212  in- 
juries cited  in  the  New  York  commissions'  report,  only 
88,841  or  12.78  per  cent  were  compensated;  and  even  the 
fact  that  this  total  included  minor  injuries,  at  the  most  fifty 
per  cent  of  all,  does  not  materially  vitiate  the  conclusion 
drawn.  Moreover,  when  recovered — and  the  delay  is  often 
great  and  serious — the  compensation  is  usually  most  inade- 


199]  '^^^  workmen's  compensation  law  53 

quate,  if  not  perchance  superfluously  generous.  "  A  good 
deal  to  the  very  few  and  nothing  or  very  little  to  most 
seems  to  be  the  principle  upon  which  the  liability  system 
worked  itself  out."^** 

The  common  law  doctrines  of  assumption  of  risk,  contrib- 
utory negligence  and  fellow  servant  negligence  have  also 
come  in  for  their  own  special  condemnation :  the  assump- 
tion of  risk  theory  on  the  grounds  explained  above ;  the 
contributory  negligence  theory  as  being  inequitable  in 
thrusting  upon  the  employee  full  liability  for  partial  fault, 
in  its  essence  a  lazy  rule  of  expediency ;  the  fellow-servant 
doctrine  as  being  totally  inadequate  in  this  day  of  enormous 
factories  and  multitudinous  coemployees,  many  of  them  in 
entirely  separated  departments.  Moreover,  the  hostility 
aroused  under  common  law  principles  between  the  laborer 
and  his  employer  by  the  consequent  law-suits  and  bicker- 
ings is  surely  not  conducive  to  economic  peace  and  mutual 
understanding.  Finally,  and  this  argument  being  expressed 
in  dollars  and  cents  has  always  been  most  potent  with  the 
layman,  the  cost  of  administration,  the  lawyers'  fees  and 
the  court  costs,  have  annually  mounted  to  intolerable  fig- 
ures. This  was  a  direct  burden  both  upon  society^^  and 
upon  the  injured  workingman  who  could  ill  afford  the  in- 
creased load.  All  of  these  defects  of  the  liability  system 
worked  a  hardship  upon  the  laborer,  generally  causing  him 
to  lower  his  standard  of  living,  if  not  to  become  an  actual 
object  of  charity.  To  prevent  this,  to  provide  compensa- 
tion for  every  injury  when  most  needed,  to  save  lawyers' 
fees,  to  promote  amicable  relations  between  the  employer 

1°  J.  M.  Rubinow,  Social  Insurance,  p.  94.  This  book  is  rich  in 
statistical  matter.  Another  valuable  piece  of  statistical  work  is  con- 
tained in  the  congressional  report  on  compensation,  in  S.  Doc,  vol. 
12,  62d  Cong.  2d  sess. 

1^  There  is  some  argument  that  the  cost  of  administration  of  the 
compensation  law,  the  salaries  of  the  commission  and  its  other  ex- 
penses, will  be  as  great  as,  if  not  greater  than,  the  saving  accom- 
plished by  the  diminution  of  court  work.  This  argument,  even  if 
true,  can  weigh  little;  for  it  is  not  the  cost  of  government  which  the 
compensation  laws  are  striving  to  effect,  but  the  social  cost  of  inca- 
pacitated, degraded  workingmen. 


54  THE   LABOR   LAW   OF    MARYLAND  [200 

and  the  employee,  these  are  the  aims  of  compensation.  To 
put  upon  the  consuming  public  the  duty  of  preventing  pov- 
erty instead  of  mitigating  wretchedness. 

The  arguments  are  clearly  in  favor  of  compensation; 
yet  the  inevitable  lag  of  legislation,  the  opposition,  entirely 
explicable,  of  the  capitalist  class  to  any  social  legislation 
which  will  affect  their  pocketbooks, — and  all  social  legis- 
lation must  necessarily  affect  their  pocketbooks  in  the  first 
instance,  though  the  intention  is  that  part,  at  least,  of  the 
burden  shall  be  shifted, — the  technical  shortcomings  of  the 
average  state  legislature;  these  have  kept  Maryland  for 
twelve  years  with  insufficient  compensation  laws  on  her 
statute  books. 

The  Maryland  act  of  1914,  however,  provided  for  a  com- 
pulsory system  of  compensation  insurance  in  certain  enu- 
merated extra-hazardous  employments.^^  The  legislature 
flatly  challenged  the  constitutional  obstacle  of  due  process 
of  law  by  making  the  law  absolutely  compulsory  for  those 
employments  to  which  it  applies.  This  system  of  absolute 
compulsion  is  in  complete  accord  with  theoretical  opinion, 
but  in  almost  as  complete  contrast  to  the  actual  perform- 
ances of  various  States.  Only  four  states  out  of  twenty- 
four,  that  is,  Maryland,  New  York,  Ohio  and  Washington, 
have  compulsory  schemes.  The  others  have  sought  to  ap- 
pease the  courts  with  what  I  have  denominated  in  this  dis- 
cussion pseudo-elective  schemes.  These  latter  laws  are 
purely  elective,  though  often  with  a  presumption  of  election 
unless  notice  to  the  contrary  be  given ;  but  those  employers 
who  fail  to  elect  are  penalized  by  being  deprived  of  the  de- 
fenses of  assumption  of  risk,  fellow-servant  fault  and  con- 
tributory negligence,  and  burdened  with  the  added  disad- 
vantage of  popular  disapprobation  in  the  jury  trial  which 
must  take  the  place  of  compensation  proceedings.  The  em- 
ployee who  does  not  elect  is  left  in  the  same  position  as  he 
was  before  the  passage  of  the  act.    That  is  to  say,  the  law 

"  Sec.  32  as  amended  by  Laws  1916,  Ch.  597.  See  also  American 
Ice  Co.  V.  Fitzhugh,  128  Md.  382. 


20l]  THE   workmen's   COMPENSATION    LAW  55 

States  in  effect  first  to  the  employer:  You  are  perfectly 
free  to  choose  whether  you  will  come  under  the  compensa- 
tion scheme  or  remain  under  liability  principles ;  but,  if  you 
do  not  choose  the  new  compensation,  you  will  be  deprived 
of  your  three  common  law  defenses  and  the  jury  will  hardly 
be  disposed  in  your  favor.  Then  to  the  employee:  You 
have  the  same  choice ;  but,  if  you  do  not  take  up  with  our 
plan,  expect  no  favors  from  us.  The  courts  see  no  coercion 
in  this.  The  end  attained  by  this  system  is  practically  the 
same  as  that  reached  by  the  compulsory  system,  but  in  a 
clumsy  manner.  The  pseudo-election  has  been  a  sop  to  the 
courts,  which  have  refused  to  see  any  deprivation  of  due 
process  to  him  who  has  chosen  to  be  so  governed.  The  sub- 
terfuge has  been  successful,  but  the  courts  have  opened 
themselves,  and  rightly,  to  the  charge  of  inconsistency,  a 
quality  which,  interesting  as  it  may  be  in  other  fields,  is 
deadly  to  the  law.^^ 

The  Maryland  law,  as  has  been  said,  enumerates  the 
extra-hazardous  employments  which  are  covered,  making 
provision,  however,  in  a  blanket  clause  for  all  hazardous  em- 
ployments not  specifically  enumerated.  The  presumption, 
therefore,  is  that  any  dangerous  occupation  is  covered  by 
the  act.  On  the  other  hand,  "  farm  laborers,  domestic  ser- 
vants, country  blacksmiths,  wheelwrights  and  similar  rural 
employments,  casual  employees,  and  any  employee  whose 
salary  exceeds  $2000  per  annum "  are  specifically  ex- 
cluded.^* Practically  the  same  exclusion  exists  in  all 
States,  sometimes  by  explicit  exclusion  as  in  Maryland,  as 
often  by  limiting  the  application  of  the  compensation  scheme 
to  those  establishments  employing  more  than  four  or  five 
workmen.  This  exclusion  is  usually  justified  upon  the 
grounds  of  administrative  expediency,  but  it  is  also  true 
that  the  conditions  in  these  employments  are  still  practically 
the  same  as  they  were  before  the  Industrial  Revolution  and 
therefore  do  not  so  forcibly  demand  an  amendment  of  the 

1*  Freund,  2  American  Labor  Legislation  Review,  43. 
1*  Sec.  63. 


*.♦• 


56  THE   LABOR   LAW   OF    MARYLAND  [202 

law  of  that  period.  In  addition  to  the  enumerated  list  of 
employments,  the  Maryland  law  provides  a  joint  elective 
system  of  compensation  for  all  other  employments  in  the 
State."  That  this  provision  will  be  often  elected  seems 
doubtful. 

The  provisions  for  compensation^^  in  the  Maryland  law 
cannot  be  rated  as  high  as  can  the  general  scheme.  The 
increased  cost  of  casualty  insurance  to  the  employer  has 
been  such  a  deterrent  upon  the  legislators  that  they  have 
failed  rather  completely  to  enact  wisely  and  sufficiently. 
The  sudden  increase  of  burden  upon  the  employer  which 
must  necessarily  accompany  compensation  has  indeed  been 
the  real  obstacle  in  the  path  of  these  laws ;  yet,  if  we  cor- 
rectly understand  the  theory  of  compensation,  this  increased 
cost  is  no  real  objection. 

It  has  been  long  ascertained  that  one  of  the  foremost 
causes  of  poverty  is  the  death  or  disability  of  the  wage 
earner  of  the  family.  Poverty  was  not  originally  looked 
upon  as  a  social  disease  and  the  natural  remedies  for  it  were 
individualistic  in  character.  The  supremely  moral  and 
provident  device  of  "  setting  aside  for  the  rainy  day  "  was 
the  panacea  for  all  poverty.  It  proved  hardly  a  feasible 
social  cure  for  families  stricken  by  an  industrial  accident. 
The  average  workingman  is  naturally  optimistic  and  rarely 
visualizes  the  risk  of  his  employment.  Cooperative  socie- 
ties, furnishing  social  inducements  as  well  as  fraternalistic 
benefits,  were  devised  by  the  master  minds  to  cure  to  some 
extent  this  insidious  evil.  By  distributing  the  risk,  these 
societies  offered  a  degree  of  security  at  a  low  rate.  The 
remedy,  however,  was  not  complete;  for  these  societies, 
which  developed  into  gilds  and  finally  into  the  modern  labor 
union,  naturally  did  not  include  the  entire  working  popula- 
tion. The  outsiders  still  possess,  of  course,  the  old  resource 
of  self -insurance,  "putting  aside  for  the  rainy  day,"  as  well 
as  the  newer  idea  of  insurance  in  an  organized  insurance 

15  Sec.  33. 

i«  Sec.  36,  as  amended  by  Laws  1916,  Chs.  368,  597. 


203]  '^'^'^  workmen's  compensation  law  57 

company.  The  newer  plan,  it  would  seem,  is  no  more  prac- 
ticable than  the  older,  for  the  workingman  is  naturally  in- 
different to  insurance,  especially  at  the  high  rates  which  his 
accident  risk  would  generally  bear.  This  antipathy,  or  at 
least  apathy,  toward  insurance  is  overcome  in  the  case  of 
the  labor  union  by  the  added  fraternalistic  advantages  and 
by  the  attraction  furnished  by  the  increased  utility  of  the 
union  as  a  fighting  machine,  advantages  which  seem  from 
the  viewpoint  of  insurance  of  rather  doubtful  value  because 
of  the  decrease  in  the  security  of  the  insurance  funds.  But, 
accepting  cooperative  insurance  at  its  greatest  value,  society 
still  has  on  its  hands  those  poverty  stricken  families  whose 
uninsured  wage-earners  have  been  incapacitated  or  killed  by 
industrial  accidents  and  those  families,  no  less  numerous, 
which  have  suffered  a  serious  set-back  in  their  standard  of 
living  because  of  insufficient  insurance.  Viewed,  then,  as 
social  legislation  and  totally  excluding  from  consideration 
the  equities  of  the  matter,  compensation  laws,  providing 
funds  to  tide  over  all  accidents  and  to  support  the  depend- 
ents of  killed  workmen,  are  conceived  to  offset  and  to  fore- 
stall this  important  cause  of  poverty.  Society  is  to  foot  the 
bill  and  employers  are  expected  to  shift  the  burden  which 
is  primarily  placed  upon  them.  It  is  perfectly  possible  to 
argue,  though  it  is  doubtful  whether  the  employer  will  en- 
thusiastically agree  with  the  argument,  that  the  employer 
should  invite  a  large  increase  in  insurance  rates,  for  it  has 
often  been  demonstrated  that  the  producer  can  be  assured 
of  much  greater  success  in  shifting  large  increases  in  the 
cost  of  production  than  small  increments. 

Washington  is  the  only  State  in  the  Union,  however, 
which  has  interpreted  the  dictum  of  social  insurance  liter- 
ally. Her  compensation  law  provides  for  the  care  of  de- 
pendent widows  and  injured  workmen  on  the  same  plan  that 
poor  relief  would  be  granted,  though,  of  course,  on  a  more 
generous  scale.  Upon  death,  the  widow  is  to  receive  twenty 
dollars  a  month  for  life  or  until  she  marries,  with  five  dol- 
lars additional  up  to  thirty-five  dollars  for  each  child  under 


58  THE   LABOR  LAW   OF   MARYLAND  [2O4 

sixteen.  For  total  disability,  the  injured  employee  receives 
twenty  dollars  a  month  if  unmarried,  twenty-five  if  mar- 
ried, and  five  dollars  additional  up  to  thirty-five  dollars  for 
each  child  under  sixteen.  The  compensation  lasts  during 
disability.  In  its  other  provisions  the  Washington  law  de- 
parts somewhat  from  this  principle;  but,  though  the  com- 
pensation is  somewhat  low,  what  has  been  set  forth  suffi- 
ciently illustrates  the  theory  of  social  insurance — the  pre- 
vention and  abolition  of  poverty — which  has  been  developed 
in  Washington. 

Most  of  the  States,  however,  have  met  the  problem  by 
providing  compensation  commensurate  with  the  previous 
earning  power  of  the  wage-earner.^^  The  accidents  are 
divided  into  three  classes,  those  resulting  in  death,  in  total 
disability,  and  in  partial  disability;  and  a  different  rate  of 
compensation  is  provided  for  each.  The  tendency,  though 
unjustifiable  on  theoretical  grounds,  has  been  to  divide  the 
class  of  partial  disability  into  various  categories  and  assign 
a  definite  compensation  to  each  kind  of  injury.  The  just 
method  would  be  to  compensate  the  injury  by  a  payment 
proportionate  to  the  loss  of  earning  power,  but  the  categori- 
cal method  has  been  made  use  of  in  order  to  lend  certainty 
to  the  amount  and  cost  of  insurance.  The  table  on  the  next 
page  shows  Maryland's  standing  as  to  the  rate  of  compensa- 
tion in  comparison  with  other  industrial  States. 

Maryland,  it  is  evident,  ranks  low  compared  with  these 
other  selected  States.  In  the  matter  of  death  benefits  the 
comparison  is  most  favorable  to  Maryland,  but  this  is 
merely  because  the  other  States  are  equally  delinquent,  not 
because  Maryland  is  nearer  the  standard.  New  York  is 
the  only  State  which  recognizes  that  the  needs  of  a  widow 
with  children  are  greater  than  those  of  a  widow  without 
children.  Maryland  is  prodigal  towards  the  small  family 
of  dependents  and  penurious  toward  the  larger  one.    This 

1^  Provision  is  made  in  Maryland  (Sec.  47)  as  in  some  other 
States  for  a  consideration  of  the  possibiUty  of  increase  of  earning 
power  when  the  injured  workman  is  a  youth. 


205] 


THE   WORKMEN  S   COMPENSATION    LAW 


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6o  THE   LABOR   LAW   OF    MARYLAND  [206 

is  clearly  unjustifiable  legislation.  Moreover,  this  law 
abruptly  discontinues  at  the  end  of  eight  years  the  stipend 
which  only  too  often  had  been  just  sufficient  to  support  the 
widow  or  widower.  This  is  hardly  socially  or  economically 
sound  unless  based  on  statistics  of  the  average  length  of  life 
of  a  widow  after  the  death  of  her  husband  or  unless  the 
Maryland  legislature  wished  by  enactment  to  spur  the 
widow  on  to  a  second  marriage. 

The  Maryland  provision  for  total  disability  is  entirely  in- 
adequate. An  injured,  incapacitated  workman  is,  on 
grounds  of  abstract  justice,  entitled  to  his  whole  salary  dur- 
ing incapacity.  This,  however,  is  an  extreme  and  perhaps 
an  inexpedient  position.  Some  reduction  has  to  be  made 
chiefly  to  prevent  malingering,  but  also  to  satisfy  the  prac- 
tical sense  of  the  community.  In  one  European  country, 
however,  eighty  per  cent  of  the  workingman's  former  earn- 
ing capacity  has  been  granted  and  found  expedient,  but  in 
America  sixty-six  and  two  thirds  per  cent  has  been  deemed 
sufficient.  Maryland  provides  for  only  fifty  per  cent.  More 
serious,  however,  is  the  limitation  of  even  this  compensation 
to  eight  years  unless  the  laborer  by  dying  precludes  the 
limitation  becoming  an  injustice.  There  can  be  no  justifi- 
cation for  thus  terminating  the  compensation.  These  laws 
are  framed  to  prevent  poverty,  not  to  postpone  it  for  eight 
years. 

The  provisions  for  partial  disability  are  perhaps  less 
justifiable  than  those  for  total  disability.  Compensation  for 
partial  disability  in  Maryland  is  divided,  as  intimated,  into 
two  classifications :  temporary  partial  and  permanent  par- 
tial disability,  and  the  latter  is  subdivided  into  smaller  cate- 
gories. The  division  is  entirely  useless  and  very  confusing. 
The  compensation  for  temporary  partial  disability  is  fifty 
per  cent  of  the  loss  of  earning  power  due  to  the  injury, 
the  total  compensation  not  to  exceed  $3500.  If,  however, 
the  same  injury — and  it  is  not  impossible  to  conceive  one — 
should  be  classed  as  a  permanent  partial  disability  not  cov- 
ered by  the  special  schedule,  the  rate  of  compensation  is  the 


20/]  THE   workmen's    COMPENSATION    LAW  6 1 

same  as  that  just  given,  but  the  maximum  is  reduced  to 
three  thousand  dollars.  An  impasse,  it  seems  to  me.  The 
specified  schedule,  as  will  be  seen  from  the  table,  seeks  to 
put  a  special  price,  based  upon  fifty  per  cent  of  the  weekly- 
wage,  upon  certain  enumerated  injuries.  As  was  said 
above,  these  schedules  are  justified  merely  as  an  insurance 
device;  as  a  social  preventive  they  are  unjustifiable.  They 
would  admit  that  a  man  is  incapacitated  by  the  loss  of  a 
member  and  needs  compensation.  However,  in  two  or  three 
years,  it  is  to  be  assumed  he  will  have  recovered  and  have 
completely  adjusted  himself  to  his  new  mode  of  working, 
being  able  to  earn  sufficient  to  support  himself  and  his  fam- 
ily at  a  standard  little  below  his  former  standard  of  living. 
It  is  absurd.  Can  a  machinist  who  has  lost  his  hand  earn 
nearly  what  he  has  been  accustomed  to  earn?  Is  a  struc- 
tural steel  worker  who  has  lost  a  leg  a  capable  workman? 
The  only  just  compensation  is  a  percentage  of  the  loss  of 
earning  power  during  the  disability ;  yet  no  American  State 
has  provided  unlimited  compensation.  Massachusetts  is  the 
most  exemplary,  for  besides  providing  a  compensation  of 
two-thirds  the  loss  of  earning  power  during  ten  years,  it 
recognizes  the  fact  that  the  injured  laborer  will  be  in  greater 
need  during  the  first  year  of  his  injury  by  providing  a  com- 
pensation of  two-thirds  his  wages  for  this  year,  after  which 
the  regular  compensation  runs.  In  this  section  more  than 
^n  any  other  the  Maryland  law  is  inadequate  and  in  need 
iof  amendment. 

Another  feature  of  the  law  which  must  be  considered  in 
connection  with  the  compensation  provisions  of  the  act  is 
|;he  section  dealing  with  what  is  technically  known  as  the 
"waiting  period."^^  In  order  to  prevent  malingering  and 
to  exclude  those  innumerable  minor  injuries  which  it  is  in- 
expedient to  compensate,  all  compensation  laws  specify  a 
period  before  which  no  payments  are  granted.  The  stand- 
ards adopted  in  this  study  specify  from  three  to  seven  days ; 

"  Sees.  49  and  36  (i). 


62  THE  LABOR  LAW   OF   MARYLAND  [208 

but,  though  in  some  European  countries  the  shorter  time  is 
made  use  of,  the  prevailing  practice  in  the  United  States 
is  to  enforce  a  waiting  period  of  fourteen  days,  though  in 
a  few  States  it  is  only  seven  days.  The  Maryland  law  pro- 
vides for  a  waiting  period  of  fourteen  days  except  in  the 
case  of  total  disability  when  the  workman  waits  only  seven 
days.  During  this  waiting  period  the  only  outside  help 
provided  for  the  injured  employee  in  most  acts  is  medical 
and  surgical  aid."  In  Maryland  the  employee  is  entitled  to 
this  aid  at  the  expense  of  the  employer  up  to  the  amount  of 
one  hundred  and  fifty  dollars,  so  that  it  may  continue  longer 
than  the  waiting  period  if  necessary.^^ 

In  most  States  the  compensation  provided  in  the  sections 
just  discussed  is  the  sole  remedy  of  the  workingman.  In 
Maryland,  however,  on  account  of  the  constitutional  diffi- 
culties previously  set  forth,  whether  sound  or  not,  it  is  pro- 
vided that  "if  the  injury  or  death  results  to  a  workman 
from  the  deliberate  intention  of  his  employer,  the  employee 
or  his  widow  .  .  .  may  have  a  cause  of  action  as  if  this 
Act  had  not  been  passed."^*  Except  in  such  a  case  the  em- 
ployee or  his  dependents,^^  upon  proper  notice  to  his  em- 
ployer^®  and  upon  periodic  medical  examinations^'^  is  en- 
titled to  his  compensation  and  he  is  absolutely  forbidden  to 
surrender  this  right  by  any  contract.^^ 

22  It  is  sometimes  argued  against  the  long  waiting  period  that  the 
low  paid  laborer  may  be  forced  below  the  subsistence  line  in  the 
first  month  of  his  injury  and  never  again  be  able  to  pull  himself 
above  it.  E.  g.,  a  laborer,  with  a  family  of  four,  earning  twelve 
dollars  a  week,  is  injured.  His  total  compensation  for  the  first 
month  of  his  injury  will  be  just  equal  to  his  former  weekly  wage. 
The  argument  is  strong,  but  seems  outweighed  by  considerations  of 
expediency  and  of  penalizing  improvidence. 

23  Sec.  37,  as  amended  by  Laws  1916,  Ch.  597. 
2*  Sec.  45. 

25  Non-resident  aliens  are  included.  Sec.  36,  as  amended  by  Laws 
1916,  Ch.  368. 

26  Sec.  38. 
2^  Sec.  42. 

28  Sec.  53.  A  recent  decision  of  the  Massachusetts  Supreme  Court 
has  stated  that  the  compensation  provided  in  the  act  does  not  relieve 
the  employer  from  liability  to  the  parents  of  a  minor  for  loss  of 
service.     (King  v.  Viscoloid  Co.,  106  N.  E.  988.)     It  seems  hardly 


209]  THE   workmen's   COMPENSATION   LAW  63 

The  compensation  is  paid  for  disability  or  death  "  result- 
ing from  an  accidental  personal  injury  .  .  .  arising  out  of 
and  in  the  course  of  employment  without  regard  to  fault 
as  a  cause  of  such  injury"  and  "such  disease  or  infection 
as  may  naturally  result  therefrom."  However,  "  where  the 
injury  is  occasioned  by  the  wilful  intention  of  the  injured 
employee  to  bring  about  the  injury  to  himself  or  another, 
or  where  the  injury  results  solely  from  the  intoxication  of 
the  injured  employee,"  no  compensation  is  recoverable.^" 
This  or  a  similar  section  has  given  rise  in  every  State  to 
an  immense  amount  of  litigation,  but  it  will  not  be  neces- 
sary to  delay  longer  here  than  to  quote  the  definition 
adopted  by  the  Maryland  commission : 

"An  injury  is  received  in  the  course  of  employment 
when  it  comes  while  the  person  is  doing  the  duty  which 
he  is  employed  to  perform.  It  arises  out  of  the  employ- 
ment when  there  is  apparent  to  the  rational  mind,  upon  con- 
sideration of  all  circumstances,  a  causal  connection  between 
the  conditions  under  which  the  work  is  required  to  be  per- 
formed and  the  resulting  injury.  Under  this  test  if  the 
injury  can  be  seen  to  have  followed  as  a  natural  incident  of 
the  work,  and  to  have  been  contemplated  by  a  reasonable 
person  familiar  with  the  whole  situation  as  a  result  of  the 
exposure  occasioned  by  the  nature  of  the  employment,  then 
it  arises  out  of  employment.  But  it  excludes  an  injury 
which  cannot  fairly  be  traced  to  the  employment  as  a  con- 
possible  that  such  a  decision  could  occur  under  the  Maryland  law. 
The  Massachusetts  law  is  a  pseudo-elective  law  and  provides  only 
that  unless  the  employee  shall  have  given  contrary  notice,  he  will  be 
assumed  to  have  surrendered  his  rights  to  any  recovery  outside  the 
law.  This,  says  the  court,  does  not  abrogate  the  parents'  right  of 
recovery  for  it  is  a  "  rule  of  statutory  construction  that  an  existing 
common  law  right  of  action  is  not  to  be  taken  away  by  a  statute 
unless  by  direct  enactment  or  necessary  implication."  In  the  Mary- 
land act,  however,  it  is  provided  that  the  common  law  rule  "that 
statutes  in  derogation  of  the  common  law  are  to  be  strictly  construed 
shall  have  no  application  to  this  act"  (Sec.  61)  ;  and,  moreover,  that 
payment  under  the  act  "  shall  be  in  lieu  of  any  and  all  rights  of 
action  whatsoever  against  any  person  whomsoever"  (Sec.  36). 

29  Sees.  14  and  63   (6),  as  amended  by  Laws  1916,  Ch.  593.     See 
also  American  Ice  Co.  v.  Fitzhugh,  128  Md.  382. 


64  THE   LABOR   LAW    OF    MARYLAND  [2IO 

tributing  proximate  cause  and  which  comes  from  a  hazard 
to  which  the  workman  would  have  been  equally  exposed 
apart  from  the  employment.  The  causative  danger  must 
be  peculiar  to  the  work  and  not  common  to  the  neighbor- 
hood. It  must  be  incidental  to  the  character  of  the  busi- 
ness and  not  independent  of  the  relation  of  master  and 
servant.  It  need  not  have  been  foreseen  or  expected,  but 
after  the  event  it  must  appear  to  have  had  its  origin  in  the 
risk  connected  with  the  employment,  and  to  have  flowed 
/rom  that  source  as  a  rational  consequence."^'' 

It  may  be  noted  here  that,  since  the  compensation  law 
does  not  cover  occupational  diseases,  Maryland  is  without 
^ny  legal  remedy  for  this  industrial  evil,  for  under  the  com- 
fnon  law  doctrines  it  would  be  practically  impossible  to  re- 
cover from  the  employer  in  the  courts.  The  legislative  prin- 
ciples upon  which  these  diseases  are  excluded  from  the 
operation  of  this  act  are  perhaps  sound,  but  some  provision 
^hould  be  made  in  a  separate  act  for  compensation  of  the 
incapacitated.  It  is  obvious  that  the  same  reasons  which 
demanded  the  passage  of  the  compensation  law,  the  social 
and  individual  effects  of  uncompensated  injuries,  as  loudly 
call  for  an  act  whereby  the  diseases  inevitable  to  the  occu- 
pation should  be  borne  by  the  occupation.  Practically  every 
European  country  has  a  law  of  this  kind,  but  the  acceptance 
,of  the  principle  has  been  slow  in  this  country. 

The  provisions  of  the  law  which  have  been  considered 
are,  of  course,  those  most  important  to  the  laborer.  It  is, 
unfortunately,  this  part  of  the  Maryland  law  which  is  most 
deficient.  However,  a  law  is  not  a  law  until  it  is  adminis- 
tered, and  it  is,  therefore,  of  utmost  importance  to  the  bene- 
ficiary of  the  act  that  its  administration  be  efficient.  For- 
tunately, the  sections  of  the  Maryland  act  dealing  with  the 
administration  and  insurance  are  most  complete  and  most 
satisfactory. 

The  greatest  necessity,  after  once  establishing  the  true 
compensation  principle,  is  to  provide  some  method  of  guar- 

30  Claim  No.  224,  quoting  from  McNichol  v.  Emp.  Lia.  Ass.  Co., 
215  Mass.  497. 


21  l]  THE   workmen's    COMPENSATION    LAW  65 

anteeing  the  payments  to  the  injured  employee.  It  is  easy 
to  conceive  of  a  compensation  law  totally  invalidated  by  the 
inability  of  the  employers  to  make  sufficient  payments  after 
the  accident  because  of  insolvency  or  other  unforeseen  dif- 
^culty.  Some  European  countries  have  passed  laws  with- 
out any  provision  for  the  securing  of  the  compensation, 
leaving  everything  to  the  individual  initiative  of  the  em- 
ployer ;  but  in  the  United  States  it  has  been  unusual  not  to 
pompel  some  kind  of  insurance.  In  Maryland,  under  a 
heavy  pecuniary  penalty  and  the  added  disadvantage  of  the 
abrogation  of  his  three  common  law  defenses  in  any  suit 
arising  during  the  time  of  his  non-coverage,^^  the  employer 
is  compelled  to  secure  the  compensation  due  from  him 
either  by  insuring  in  the  State  Accident  Fund,  in  an  old 
line  casualty  insurance  company  or  mutual  insurance  asso- 
ciation authorized  to  carry  workmen's  compensation  insur- 
ance and  under  the  supervision  of  the  insurance  commis- 
sioner, or  by  convincing  the  State  Industrial  Accident  Com- 
mission that  he  is  strong  enough  financially  to  carry  his  own 
insurance.®^  The  Industrial  Accident  Commission  has  wide 
powers  of  inquisition  and  compulsion  with  reference  to  the 
methods  which  the  employer  shall  adopt ;  and  the  state  in- 
surance commissioner  has  authority  to  determine  the  ade- 
quacy and  to  regulate  the  compensation  rates  of  the  pri- 
vate companies.^' 

The  State  Accident  Fund  is  a  creature  of  the  act.^*  Full 
permission  is  given  to  the  commission  to  establish  this  fund 
by  the  underwriting  of  insurance  policies  under  the  act. 
The  Maryland  fund  is  in  the  nature  of  a  straight  insurance 
scheme  as  contrasted  with  the  compulsory,  state-adminis- 
tered mutual  insurance  fund  of  the  Ohio  act.  The  rules 
for  its  administration,  and  its  actual  administration,  are 
based  upon  the  experience  and  organization  of  private  in- 

"*  Sees.  14  and  15. 

'2  Sees.  15,  29,  and  30. 

''  See.  15,  as  amended  by  Laws  1916,  Ch.  597;  and  Sec.  29. 

'*  See  Sees.  16-28,  as  amended  in  1916. 


66  THE   LABOR   LAW    OF    MARYLAND  [212 

surance  companies.  Full  power  to  make  rates  and  classifi- 
cations conducive  to  accident  prevention  is  granted.  Penal 
provisions  allow  the  state  fund  to  enforce  certain  regula- 
tions as  to  uniform  payrolls  or  payroll  reports  which  the 
private  companies  enforce  by  cancellation.  As  practically 
conducted,  the  fund  does  not  solicit  policies ;  and  it  has  thus 
been  able  to  quote  rates  on  the  eight  or  nine  hundred  poli- 
cies which  it  had  underwritten  at  the  end  of  1916  ten  to 
thirty  per  cent  lower  than  the  private  companies.  This 
saving  is  also  due,  in  part,  to  the  fact  that  for  the  first 
three  years  the  full  cost  of  administration  is  borne  by  the 
State ;  and,  even  after  the  first  three  years,  the  fund  is  only 
to  bear  that  part  of  the  expense  which  is  proportionate  to 
its  share  of  the  policies  written  in  the  State.^^  It  is,  of 
course,  impossible  to  give  prior  to  the  lapse  of  a  period  of 
five  or  possibly  ten  years  an  opinion  of  any  value  on  the 
efficiency  or  economy  of  the  state  fund,  A  principal  ob- 
jection to  such  a  fund  is  that,  being  unable  to  refuse  any 
policy,  it  is  oveYburdened  with  bad  risks.  Another  objec- 
tion is  that  the  reserve  is  generally  insufficient  to  cover 
catastrophe  risk,  though  in  Maryland,  it  would  seem,  the 
entire  resources  of  the  State  are  behind  the  fund.^^  Both 
of  these  as  affecting  the  possibility  of  the  passing  of  pay- 
ments are  of  utmost  importance  to  the  employee,  more  so 
perhaps  than  to  the  employer. 

The  objections  to  the  Maryland  fund,  it  is  obvious,  are 
due  to  the  fact  that  it  is  elective  and  in  competition  with 
the  private  companies.  This  fact  has  led  other  States,  nota- 
bly Ohio  and  Washington,  to  create  a  monopoly  of  insur- 
ance in  the  state  fund.  The  savings  in  administration 
would  seem  a  convincing  argument  for  this  mode  of  secur- 
ity, if  efficient  administrative  officers  could  be  procured  for 
the  state  fund  and  the  fund  in  its  entirety  could  be  kept  out 
of  politics.  This,  of  course,  is  socialistic  legislation,  and 
encounters  the  opposition  that  is  the  natural  concomitant 

35  See  Sec.  2j,  as  amended  by  Laws  1916,  Ch.  597. 
3«  Sec.  16,  as  amended  by  Laws  1916,  Ch.  597. 


213]  THE    workmen's    COMPENSATION    LAW  6/ 

of  all  socialistic  enterprises.  In  Maryland,  especially,  this 
opposition  would  be  strong  and  effective  because  of  the 
great  growth  of  Baltimore  as  a  center  of  casualty  insurance 
companies  and  the  consequent  disruption  of  business  which 
would  of  necessity  ensue. 

The  law  as  a  whole  is  administered  by  the  State  Indus- 
trial Accident  Commission,  composed  of  three  commission- 
ers appointed  by  the  governor  of  the  State  for  a  term  of 
six  years  with  an  annual  salary  of  five  thousand  dollars.^^ 
Provision  is  made  that  this  commission  shall  be  bi-partisan, 
but  there  is  no  attempt  to  secure  efficient  administration  at 
the  cost  of  party  politics.  The  commission  has  the  employ- 
ment of  upwards  of  fifty  clerks,  actuaries,  etc.,  with  no 
supervision  except  the  written  approval  of  the  governor  to 
the  salaries :  competitive  examinations  are  not  mentioned. 
During  the  administration  of  each  governor  the  terms  of 
at  least  two  of  the  three  commissioners  will  expire  so  that 
each  governor  will  be  able  to  change  completely  the  political 
complexion  of  a  board  which  will  annually  spend  forty 
thousand  dollars  or  over.  Whether  party  politics  is  going 
to  spoil  another  good  legislative  endeavor,  it  is,  of  course, 
impossible  to  prophesy;  but  it  seems  unpardonable  that  a 
more  efficient  check  than  public  opinion  was  not  provided 
in  the  law. 

The  principal,  and,  at  this  time,^*  the  only,  office  of  the 
commission  is  in  Baltimore  City ;  but,  when  it  is  more  con- 
venient for  one  of  the  commissioners  to  go  into  another 
part  of  the  State  to  hold  a  hearing  than  it  is  for  the  claim- 
ant with  all  his  witnesses  to  travel  to  Baltimore,  advantage 
is  taken  of  the  provision  allowing  one  commissioner  to  hold 
hearings  and  make  awards  subject  to  the  approval  of  his 

'■^  Sees.  I  and  3.  Three  thousand  dollars  only  of  the  salary  is  paid 
by  the  State,  because  of  the  provision  of  the  Constitution  against 
appointive  officers  with  salaries  above  three  thousand  dollars  (Art. 
15,  Sec.  i).  The  other  two  thousand  dollars  is  paid  by  the  City  of 
Baltimore,  a  practice  which  has  been  recently  approved  by  the  Court 
of  Appeals  with  regard  to  the  Public  Service  Commission  in  Thrift 
V.  Laird,  125  Md.  55. 

88  1916. 


68  THE   LABOR   LAW    OF    MARYLAND  [2I4 

colleagues.  The  normal  course  of  proceedings,  however,  is 
for  the  entire  inquiry  to  be  conducted  at  the  home  office  by 
the  commission  as  a  whole.  When  due  notice  has  been 
given  of  an  accident  and  the  fourteen  waiting  days  have 
passed,  during  which  time  the  injured  laborer  has  been 
enjoying  medical  treatment,  the  commission  sets  a  date  five 
days  in  advance,  before  which  any  objection  to  the  pay- 
ment of  the  claim  must  be  made  and  a  hearing  requested. 
Unless  there  is  objection  the  claim  is  paid,  for  there  is 
specifically  declared  to  be  a  strong  presumption  that  "  the 
claim  comes  within  the  provisions  of  the  act,  that  sufficient 
notice  was  given,  that  the  injury  was  not  occasioned  by  the 
wilful  intention  of  the  injured  employee  to  bring  about  the 
death  or  injury  of  himself  or  another,  and  that  the  injury 
did  not  result  solely  from  the  intoxication  of  the  injured 
employee  while  on  duty."^®  It  is  in  these  summary  cases 
naturally  that  the  principal  economies  of  the  law  become 
apparent. 

If  the  employer  demurs  to  the  employees'  claim,  a  hear- 
ing is  set.  The  hearing  is  held  either  before  the  Accident 
Commission  or  before  a  special  arbitration  committee  ap- 
pointed by  it.*"  Until  a  large  body  of  precedents  is  built 
up  it  is  not  expected  that  a  special  arbitration  committee 
will  be  often  appointed.  At  these  hearings  the  commission 
prefers  to  have  each  party  represented  by  an  attorney,  so 
that  the  case  will  be  presented  in  an  orderly  manner.  Here 
becomes  apparent  one  of  the  points  where,  in  the  practical 
operation  of  a  compensation  law,  it  departs  radically  from 
its  ideals  of  no  lawyers  and  no  hostility  between  capital  and 
labor.  The  proceedings  of  the  commission  are,  however, 
fnost  siunmary  in  their  nature.  There  is  no  pleading ;  com- 
mon law  rules  of  evidence  do  not  prevail.*^  Only  one  of 
the  present  commissioners  is  a  lawyer,  and  the  commis- 
sioners often  question  the  witness  in  order  to  bring  out  what 

8*  Sec.  62. 
*°  Sec.  40. 
*^  Sees.  9-10. 


215]  "^H^  workmen's  compensation  law  69 

seem  to  them  essential  points.  The  proceedings  should  be 
equitable  rather  than  legal  in  nature  has  declared  a  Massa- 
chusetts court  in  a  recent  decision.*^  In  all  investigations 
the  commission  has  "  power  to  issue  subpoenas,  compel  the 
attendance  of  witnesses,  .  .  .  compel  the  production  of 
pertinent  books,  payrolls,  accounts,  papers,  records,  docu- 
ments and  testimony,"  and  an  immunity  bath  is  provided 
against  self-incrimination  to  save  the  constitutionality  of 
the  statute.*^  Every  precaution  is  taken  to  secure  swift 
and  adequate  justice  and  to  make  this  board,  though  quasi- 
Judicial  in  its  procedure,  executive  in  its  action.  The  pow- 
ers of  the  commission  do  not  cease  upon  each  award,  but 
continue  like  the  powers  of  equity  courts  over  their  trustees 
and  guardians :  it  may  at  any  time  upon  due  cause  and 
notice  amend  its  awards  and  decisions.** 

"Any  employer,  employee,  beneficiary  or  person  feeling 
aggrieved  by  any  decision  of  the  commission  affecting  his 
interests  under  this  Act  may  have  the  same  reviewed  by  a 
proceeding  in  the  nature  of  an  appeal "  in  any  common  law 
court  having  jurisdiction;  "and  the  court  shall  determine 
whether  the  commission  has  justly  considered  all  the  facts 
concerning  the  injury,  whether  it  has  exceeded  the  powers 
granted  it  by  the  Act,  or  whether  it  has  misconstrued  the 
law  and  facts  applicable  in  the  case  decided."  This  appeal 
also  is  to  be  conducted  in  a  summary  manner,  but,  upon 
motion  of  either  party,  any  question  of  fact  involved  may 
be  submitted  to  a  jury.  Appeals  from  these  proceedings  lie 
to  the  Court  of  Appeals.*^ 

This  exposition  of  the  principles  of  the  act  demonstrates 
that  it  is  a  piece  of  legislation  passed  for  the  benefit  of  the 
laborer;  and,  insufficient  and  unsatisfactory  as  some  of  its 

^2  In  re  Mut.  Liability  Ins.  Co.,  102  N.  E.  693. 

*3  Sec.  7.  Contempt  of  any  of  these  orders  may  be  punished  upon 
application  to  any  judge  in  Maryland. 

**  Sec.  54.  Construed  in  Adleman  v.  Ocean  Accident,  etc.  Corp., 
130  Md.  512. 

*5  Sec.  56.  See  also  Breuner  v.  Breuner,  127  Md.  189;  Frazier  v. 
Leas,  127  Md.  572. 


yO  THE   LABOR   LAW   OF    MARYLAND  [2l6 

provisions  have  been  found  to  be,  it  brings  about  a  great 
improvement  over  previous  conditions.  Besides  its  effect 
as  social  legislation,  however,  certain  legal  results  follow 
from  its  enactment. 

The  Constitutionality  of  the  Law. — From  the  legal  stand- 
point, the  most  interesting  feature  of  a  compensation  law  is 
its  constitutionality.  Frankly  considered,  the  law  requires 
that  the  money  of  one  set  of  people  shall  be  handed  over 
irrespective  of  fault  to  the  members  of  another  class  upon 
the  happening  of  a  contingency.  Such  a  law  is  a  new  de- 
parture in  American  legislation  and  presents  some  ex- 
tremely interesting  constitutional  questions.  Numerous  ar- 
guments, brilliant  and  intricate,  have  been  published  in  sup- 
port of  the  constitutionality  of  the  law,  so  that  here  there 
is  need  only  of  a  mere  outline  of  the  difficulties. 

The  fact  that  the  compensation  law  substitutes  vicarious 
liability  without  reference  to  fault  for  the  old  common  law 
liability  is  thus  met:  "Our  jurisprudence  affords  many  ex- 
amples of  legal  liability  without  fault  and  the  deprivation  of 
property  without  fault  being  attributable  to  its  owner.  The 
law  of  deodands  was  such  an  example.  .  .  .  Other  exam- 
ples are  afforded  in  the  liability  of  the  husband  for  the  torts 
of  his  wife — the  liability  of  a  master  for  the  acts  of  his 
servants."*®  Statutes  furnish  further  examples.  Munici- 
palities have  been  made  responsible  for  property  destroyed 
by  a  mob;*'^  railroads  have  been  made  liable  for  damage 
caused  by  sparks  from  its  engines.*^  But  these  precedents 
are  not  precedents  for  the  compensation  law.  The  common 
law  instances  cited  are  merely  the  result  of  imputing  to  one 
the  fault  of  another  whose  action  he  controls,  and  the  stat- 
utes relate  to  special  objects  of  state  activity.  Compensa- 
tion laws,  on  the  other  hand,  make  an  innocent  employer 
carrying  on  a  private,  lawful  business  liable  even  for  an 
accident  occurring  in  the  course  of  that  business.     This 

«  Chicago,  R.  I.  &  R.  R.  Co.  v.  Zernicke,  183  U.  S.  582. 
*^  Chicago  V.  Sturgis,  222  U.  S.  313. 

«st.  Louis,  S.  F.  R.  Co.  v.  Mathews,  165  U.  S.  i,  and  numerous 
state  decisions. 


21/]  THE   workmen's   COMPENSATION    LAW  /I 

argument  through  precedents  does  not  lead  to  very  satis- 
factory conclusions. 

Another  argument  seeks  to  uphold  the  compensation  law 
upon  the  basis  of  the  decision  in  the  Second  Employers' 
Liability  case.*®  This  decision  held  that  it  was  within  the 
power  of  Congress  so  to  change  the  rules  of  law  that  no 
railroad  could  avail  itself  of  the  three  common  law  de- 
fences of  assumption  of  risk,  contributory  negligence,  and 
fellow-servant  doctrine  in  a  damage  suit  against  it  by  an 
employee.  The  decision  merely  reiterated  the  old  opinion 
that  there  can  be  no  property  in  a  rule  of  law.^°  To  try  to 
base  the  constitutionality  of  the  compensation  law  upon 
this  decision  displays  an  ignorance  of  the  distinction  between 
that  law  and  an  employers'  liability  law.  The  liability  law 
merely  abrogates  the  three  common  law  defences  and  leaves 
the  law  of  industrial  accidents  otherwise  the  same;  the 
compensation  law  provides  for  the  indiscriminate  indemni- 
fication by  an  administrative  tribunal  of  all  industrial  acci- 
dents. The  liability  law  retains  the  idea  of  fault ;  the  com- 
pensation law  imposes  a  vicarious  liability. 

A  final  case  relied  upon — and  this  time  with  more  justi- 
fication— is  the  bank  guarantee  case.^^  Here  the  court  held 
constitutional  a  law  which  ordered  all  state  banks  in  the 
State  of  Oklahoma  to  contribute  to  a  guarantee  fund  from 
which  were  to  be  paid  the  losses  sustained  by  the  deposit- 
ors in  any  state  bank  by  its  insolvency.  Here  property  is 
taken  from  one  set  of  people  to  be  handed  over  to  another 
set  upon  the  happening  of  a  contingency  for  which  the  first 
set  is  often  without  fault.  In  this  respect  this  law  is  ex- 
actly similar  to  a  compensation  law,  and  this  case,  especially 
in  view  of  the  broad  language  used  by  Justice  Holmes,  is 
most  aptly  referred  to  as  a  precedent  and  an  analogue  in 
arguing  the  constitutionality  of  a  compensation  law.  But  a 
distinction  can  be  drawn.     In  the  first  place,  banking  is 

«  Mundou  V.  N.  Y.,  N.  H.  &  H.  R.  Co.,  223  U.  S.  I. 

''o  Munn  V.  Illinois,  94  U.  S.  113. 

"  Noble  State  Bank  v.  Haskell,  219  U.  S.  104. 


72  THE   LABOR   LAW    OF    MARYLAND  [2 1 8 

peculiarly  a  subject  of  state  control;  it  is  most  highly 
"aflfected  with  a  public  interest."  In  fact,  it  is  really  a 
public  business  entrusted  to  private  enterprise  and  almost 
any  regulation  in  furtherance  of  the  public  welfare  would 
be  justified.  In  the  second  place,  there  is  a  decided  com- 
munity of  interest  among  bankers  which  tends  to  make  them 
stand  together  and  be  somewhat  responsible  for  the  acts  of 
one  another,  so  that  the  law  merely  lends  the  sanction  of 
the  state  to  what  was  before  demanded  by  self-interest.  It 
might  be  argued  that  a  compensation  law  creates  a  com- 
munity of  interest  among  employers  in  the  promotion  of 
safety,  but  this  is  a  difficult  argument,  and  there  is  of  course 
no  special  public  interest  in  most  of  the  occupations  covered 
by  a  compensation  law.  Therefore,  though  the  bank  guar- 
antee case  is  a  weighty  precedent,  it  does  not  seem  to  be 
absolutely  conclusive. 

If  a  compulsory  compensation  law  is  to  be  frankly  up- 
held, it  will  have  to  be  upheld  as  an  exercise  of  the  police 
power.  It  was  in  the  exercise  of  this  power  that  the  Mary- 
land act  was  avowedly  passed.^^  "  *  Property  of  every  kind 
— it  must  be  remembered — is  held  subject  to  those  regula- 
tions which  are  necessary  for  the  common  good  and  general 
welfare.  And  the  legislature  has  the  power  to  define  the 
mode  and  manner  in  which  every  one  may  use  his  prop- 
erty.' "^^  It  is  in  pursuance  of  this  power,  as  was  said  in 
the  first  chapter,  that  all  labor  legislation  is  enacted  and,  if 
we  consider  the  previous,  admittedly  constitutional  labor 
enactments,  it  will  be  easily  demonstrated  that  the  compen- 
sation law  is  merely  a  peculiar  development  of  a  well- 
established  principle. 

Since  the  Industrial  Revolution,  the  bargaining  power  of 
the  laborer  has  not  been  equal  to  that  of  the  employer. 
The  inequality  was  early  recognized  by  the  legislatures  and 

^"^  See  the  preamble,  Part  4. 

53  Windsor  v.  State,  103  Md.  611,  quoting  Story  on  the  Constitu- 
tion. See  also  Singer  v.  State,  72  Md.  464;  State  v.  Hyman,  98  Md. 
596;  64  L.  R.  A.  637 ;  State  v.  Gurry,  121  Md.  534;  C.  &  P.  Telephone 
Co.  V.  Board  of  Forestry,  125  Md.  666. 


219]  THE   workmen's    COMPENSATION    LAW  73 

the  courts  too  have  now  explicitly  sanctioned  the  legislative 
correction  of  this  inequality."^*  In  pursuance  of  this  policy 
of  equalization,  the  legislatures  have  never  seen  fit  to  make 
absolutely  equal  the  two  parties  to  the  labor  contract,  but 
have  instead  guaranteed  to  the  employee  certain  terms  of 
the  contract  which  were  conceived  as  necessary  to  the  "  gen- 
eral welfare  and  public  convenience."  Thus  the  legislature 
has  passed  child  labor  laws,  hours  of  labor  laws  for  men 
and  women,  safety  and  sanitation  laws,  and  a  host  of  other 
laws  which  are  not  so  easy  of  classification.  The  compen- 
sation law  is  a  law  of  this  kind.  Conceiving  that  the  em- 
ployee could  not  successfully  bargain  with  the  employer  for 
a  sufficient  insurance  to  himself  against  industrial  accidents, 
the  legislature  by  its  fiat  introduced  such  an  insurance  term 
into  every  labor  contract.  That  is  to  say,  the  law  recognized 
that,  as  economists  had  long  contended,  the  employee  did 
not  visualize  all  the  risks  of  his  employment,  as  the  com- 
mon law  assumed  he  did,  and  demand  a  higher  wage  in  con- 
sequence thereof.  Therefore,  says  the  law,  an  implied  term 
of  every  contract  shall  be  an  adequate  compensation  in  case 
of  industrial  accident. 

That  this  term  of  the  contract  is  as  necessary  to  the  gen- 
eral welfare  as  are  the  terms  introduced  by  previous  laws 
seems  hardly  to  require  detailed  proof.  Indus^trial  acci- 
dents are  undoubtedly  the  principal  causes  of  poverty  and 
degradation.  If  the  prevention  of  poverty  is  not  necessary 
to  the  general  welfare  of  a  community,  what  is  ?  It  is  true 
that  the  courts,  not  however  without  criticism,  have  re- 
fused to  sanction  taxation  for  the  prevention  of  poverty. 
But,  granting  the  correctness  of  these  decisions,  they  do  not 
weaken  our  argument.  By  a  compensation  law  the  State 
does  not  tax  for  the  prevention  of  destitution;  it  merely 
decrees  that  industry  shall  not  prosper  from  the  mishaps 
of  the  employee,  just  as  it  formerly  declared  that  industry 
should  not  prosper  from  the  labor  of  children.  Industry 
must  be  conducted  legitimately  and  it  is  certainly  within 

"  Holden  v.  Hardy,  169  U.  S.  366. 


74  THE   LABOR  LAW   OF   MARYLAND  [220 

the  power  of  the  State  to  decree  that  industry  shall  bear 
the  cost  of  all  its  materials,  the  cost  of  the  life  and  limbs  of 
its  laborers,  as  well  as  of  the  inanimate  equipment  and  raw 
stuffs. 

In  thus  briefly  outlining  the  constitutional  difficulties 
which  accompany  a  compensation  law,  it  is  of  course  im- 
possible to  consider  the  finer  points  of  law.  Equally  im- 
possible is  it  to  examine  some  minor  constitutional  ques- 
tions which  may  be  raised  with  regard  to  the  Maryland 
law,  but  which  are  not  essential  to  the  compensation  prin- 
ciple. 

From  the  practical  legal  standpoint,  the  most  important 
result  of  the  compensation  law  will  be  to  render  obsolete 
in  the  occupations  covered  all  the  intricate  tort  law  dealing 
with  the  relation  between  employer  and  employee."^"  As 
has  been  so  often  iterated,  the  employer  can  no  longer  plead 
contributory  negligence,  the  doctrine  of  assumption  of  risk, 
and  the  fellow  servant  doctrine  in  defense  of  a  claim 
against  him  by  an  employee.  The  law  of  contributory 
negligence  will  continue  to  exist  in  other  damage  suits,  but 
with  this  exception  these  doctrines  will  ultimately  pass  out 
of  existence.  With  them  will  pass  a  mass  of  complicated 
and  unsettled  law.  No  longer  will  there  be  a  question  of 
what  risks  the  employee  assumes  on  entering  an  employ- 
ment, of  what  kinds  of  instruments  the  employer  must  fur- 
nish, whether  a  defect  in  a  machine  is  latent  or  patent,  or 
whether  the  employer  has  engaged  efficient  fellow  servants 
to  work  with  the  employee.  No  longer,  in  short,  will  it  be 
necessary  to  enumerate  the  duties  of  the  employer  to  the 
employee,  for  they  will  all  become  merged  in  one  duty, — 
to  compensate  him  for  an  industrial  accident.  No  longer 
again  will  it  be  necessary  to  determine  who  are  fellow  ser- 
vants, for  the  doctrine  relating  to  them  is  also  abolished. 
By  an  amendment  of  1916  one  of  the  elaborations  of  this 
rule  is  explicitly  abrogated.  If  an  employee  of  a  subcon- 
tractor is  injured  he  may  collect  his  compensation  directly 

65  See  Harlan,  Domestic  Relations,  Part  V. 


22 1]  THE   workmen's   COMPENSATION   LAW  75 

from  the  contractor  in  chief,  who  will  then  contest  with 
the  subcontractor  the  ultimate  liability.'^  Thus,  so  far  as 
the  working-man  is  concerned,  the  doctrine  of  independent 
contractor  and  with  it  the  doctrine  of  vice-principal  is 
abolished. 

In  place  of  this  branch  of  the  law  there  is  growing  up  a 
new  series  of  cases  deciding  what  is  an  accidental  injury 
"  arising  out  of  "  and  "  in  the  course  of  employment."  This 
line  of  cases,  if  we  can  judge  from  present  indications, 
threatens  to  become  as  long  as  those  which  have  been  over- 
thrown by  the  act ;  but  they  will  hardly  result  in  such  diffi- 
cult law.  I  have  already  quoted  the  definition  adopted  by 
the  Maryland  Accident  Commission. 

Finally  a  change  must  be  noted  in  the  relation  of  the  em- 
ployee to  the  insurance  carrier.  Under  the  common  law  the 
insurance  carrier  bears  no  special  relation  to  the  employee ; 
it  was  merely  the  indemnifier  of  the  employer.  Under  the 
compensation  law  "  the  insurance  carrier  occupies  the  posi- 
tion of  surety  for  the  employer,  to  secure  the  fulfillment  of 
any  liability  which  may  be  determined  to  have  arisen."^'^ 
The  liability  of  the  carrier  to  the  employee  is  a  primary  lia- 
bility jointly  with  the  employer,  and  it  is  not  excused  from 
payment  of  the  compensation  by  the  bankruptcy  or  insol- 
vency of  the  employer.^^  Nor,  of  course,  on  the  other  hand 
is  the  employer  relieved  by  insuring  in  a  bankrupt  or  in- 
solvent insurance  carrier. 

s«  Laws  1916,  Ch.  597,  adding  Sec.  60A  to  the  Code. 
5^^  Brenner  v.  Brenner,  127  Md.  189. 
68  Code  1914,  Art.  loi,  Sec.  36. 


CHAPTER  IV 
The  Conditions  of  Employment 

The  enactments  of  the  state  regulating  the  conditions  of 
employment  of  the  workingman,  the  safety  and  sanitation 
laws,  are  the  most  important  features  of  a  constructive 
labor  legislation  program.  True,  the  activity  of  the  state 
in  the  fields  discussed  in  the  two  preceding  chapters  is  most 
essential  to  the  welfare  of  the  laborer,  but  the  statutes  re- 
lating to  the  labor  union  and  the  compensation  law  are  for 
the  most  part  amendatory  of  the  common  law.  Such  inter- 
ference of  the  state  in  labor  matters  was  directed  to  making 
more  efficient  the  existing  means  for  the  reform  of  labor 
conditions,  that  is,  to  the  development  of  the  union  and  to 
the  modernizing  of  the  common  law  to  fit  present  day  in- 
dustrial conditions ;  the  remainder  of  this  study  will  be  con- 
cerned with  the  extent  to  which  the  state  should  intervene 
in  private  affairs  in  the  attempt  to  ameliorate  labor  condi- 
tions. 

The  most  important  matter  with  regard  to  which  the 
state  exercises  its  power  of  intervention  is  the  regulation  of 
the  environment  in  which  the  laborer  conducts  his  daily 
task.  This  dogmatic  statement  might  be  strenuously  con- 
tested by  some  labor  reform  advocates  and  by  some  econ- 
omists, but  their  position  seems  to  be  much  weakened  by 
an  unproportioned  estimate  of  present  conditions  and  future 
possibilities.  The  contention  that  the  foremost  problems 
and  concerns  of  labor  are  unemployment,  wages  and  hours 
may  be  admitted  without  disproving  the  contention  that  the 
prime  object  of  state  activity  is  the  safeguarding  of  the 
employee  in  his  daily  work.  Not  only  historically  was  this 
the  first  concern  of  the  state  in  industrial  conditions,  but 
practically  it  affects  more  intimately  and  more  uniformly 

76 


223]  THE   CONDITIONS   OF   EMPLOYMENT  7/ 

the  whole  mass  of  workingmen.  State  employment  officers 
may  find  work  for  a  part  of  the  unemployed  who  rarely 
comprise  more  than  eight  per  cent  of  the  working  class ;  the 
state  may  set  a  minimum  wage  for  the  hopelessly  weak  bar- 
gainers; and  the  state  may  regulate  hours  in  the  extremely 
overworked  trades ;  but,  in  all  these,  the  great  majority  of 
the  workers  are  working  out  their  own  salvation  with  con- 
stantly increasing  success.  Safety  and  sanitary  legislation, 
on  the  other  hand,  affects  every  laborer.  The  unit  of  re- 
form, so  to  speak,  is  the  factory,  not  the  individual;  and  it 
is  this  distinction  which  brings  these  factory  laws  peculiarly 
within  the  function  of  the  state  and  takes  them  out  of  the 
scope  of  private  and  voluntary  means  of  reform. 

It  is  hardly  necessary  at  this  late  date  to  argue  that  safety 
and  sanitation  legislation  is  proper  in  the  present  status  of 
industrial  conditions.  Not  even  the  most  extreme  adherent 
of  laissez-faire  can  deny  that  competition  and  the  absence 
of  regulation  reduce  the  conditions  of  labor  below  the 
standards  of  decency  and  good  health.  Even  the  most  ex- 
treme individualists  admit  that  the  police  power  of  the  state 
extends  to  the  reasonable  regulation  of  working  conditions. 
Only  the  opposition  of  the  capitalist,  who  naturally  objects 
to  the  expenditure  of  his  money  for  the  benefit  of  others, 
and  that  without  any  easily  perceptible  advantage  to  him- 
self, deters  the  legislators  from  enacting  the  fine,  ideal  laws 
which  have  been  drafted  for  them. 

Regulation  by  Commission. — There  is,  however,  some 
dispute  with  reference  to  the  preferable  mode  of  regulation 
if  not  to  the  necessity  and  kind  of  regulation.  Until  five 
years  ago  all  safety  and  sanitary  laws,  if  complete,  were 
lengthy,  minute  enactments  covering  every  known  condition 
of  employment  and  laying  down  absolute  laws  to  apply  to 
every  preconceived  condition.  Set  screws,  unguarded  belts, 
and  other  dangerous  devices  were  absolutely  outlawed,  but 
there  the  law  stopped.    In  191 1  Wisconsin,^  drawing  a  les- 

^  Wisconsin  Laws,  Sees.  2304-41  to  2394-71. 


78  THE   LABOR   LAW   OF    MARYLAND  [224 

son  from  the  evolution  of  the  governmental  control  of  rates, 
applied  the  commission  idea  of  regulation  to  industrial  con- 
ditions. A  general  law  providing  for  safety  in  industrial 
occupations  was  enacted  and  a  commission  with  ordinance 
powers  was  appointed  to  issue  orders  in  compliance  with 
this  general  law.  Full  discretionary  powers  are  substituted 
for  absolute  and  arbitrary  regulation.  Finding  it  impossi- 
ble to  foresee  every  possible  contingency  in  which  the  labor 
law  would  be  applied  and  conceiving  it  equally  impossible 
to  leave  anything  to  the  easily  corrupted  discretion  of  the 
inspectors,  the  legislature  created  a  competent  and  respon- 
sible board  to  carry  out  its  wishes.  The  idea  of  this  fourth 
branch  of  government,  the  administrative  branch,  as  it  is 
sometimes  called,^  is  not  new  in  American  politics.  The 
federal  government  has  found  it  advisable  in  handling  in- 
terstate commercial  and  industrial  conditions  and  the  State 
governments  have  rather  generally  adopted  the  same  means 
of  controlling  their  public  service  corporations  and  of  ad- 
ministering their  workmen's  compensation  laws.  In  the 
field  of  labor  legislation  the  experiment  of  Wisconsin  has 
not  failed  to  stimulate  imitation;  both  Massachusetts  and 
New  York  among  the  Eastern  States  having  to  a  consider- 
able degree  adopted  this  means  of  regulation. 

From  the  legal  standpoint  the  commission  is  an  investi- 
gating agency  with,  it  is  true,  considerably  more  power  to 
secure  practical  benefits  from  its  investigations  than  have 
most  investigating  committees.  The  significance  of  this 
aspect  of  the  commission's  work  is  most  obvious.  As  has 
been  said,  the  regulation  of  the  environment  of  employ:- 
ment  is  easily  within  the  police  power  of  the  state — the 
protection  of  health  and  safety  is  the  most  elemental  exer- 
cise of  this  power.  The  only  limitation  upon  this  control  is 
that  it  must  be  reasonable  both  in  the  manner  of  its  appli- 

2  Most  of  this  discussion  of  the  industrial  commission  scheme  of 
government  has  been  suggested  by  an  article  by  J.  R.  Commons, 
published  by  the  Wisconsin  Industrial  Commission,  most  of  which 
appeared  m  The  Survey  for  January  4,  1913. 


225]  THE    CONDITIONS   OF   EMPLOYMENT  79 

cation  and  in  the  discrimination  necessarily  involved  in  its 
exercise.  Because  of  the  manner  in  which  the  commission 
formulates  its  rules,  its  ordinances  have  the  prima  facie 
weight  of  reasonableness  greater  than  in  the  case  of  legis- 
lative enactments. 

The  commission  is  assisted  in  drawing  up  its  orders  by 
unpaid,  advisory  subcommittees  on  the  various  subjects  of 
safety  and  sanitation.  These  subcommittees  are  not  com- 
posed of  experts  fixing  ideal  regulations,  which,  as  Mr. 
Commons  says,  may  be  reasonable  in  a  superregulated  coun- 
try like  Germany,  but  hardly  in  the  United  States ;  they  are 
where  possible  drawn  mainly  from  the  ranks  of  the  em- 
ployers and  employees,  with  occasionally  one  or  two  ex- 
perts who  are  usually  taken  from  state  boards  or  insurance 
companies.  These  subcommittees  deliberate,  hear  witnesses 
in  the  same  manner  as  legislative  committees,  and  draw  up 
rules  which  are  referred  to  the  commission  as  "general 
orders."  These  orders  are  published  and  then  considered  at 
hearings  held  before  the  commission.  If  amendments  are 
suggested  to  the  commission  at  these  hearings  and  approved 
by  them  the  report  of  the  advisors  is  recommitted  to  them. 
When  finally  approved  by  the  commission,  the  "general 
orders  "  are  enacted  to  go  into  effect  thirty  days  after  final 
publication.  The  orders  can,  of  course,  be  attacked  in 
court ;  but,  as  the  commission  has  sat  at  its  hearings  in  its 
judicial  capacity  its  findings  are  presumed  to  be  reasonable 
and  constitutional,  and  even  if  before  the  court  new  evi- 
dence is  unearthed  to  prove  the  unreasonableness  of  the 
order  the  order  is  referred  back  to  the  commission  for  a 
rehearing;  the  court  does  not  absolutely  annul  the  order. 
Moreover,  since  these  orders  are  adopted  by  a  body  com- 
posed largely  of  employers,  little  ground  is  afforded  for  the 
objection  of  arbitrariness  and  public  opinion  has  a  strong 
lever  against  the  recalcitrant  capitalist. 

Moreover,  through  its  power  to  enforce  the  factory  law, 
to  control  inspection  and  to  enact  "  special  orders  "  to  fit 
unforeseen  contingencies,  the  commission  is  enabled  to  ad- 


8o  THE   LABOR   LAW   OF    MARYLAND  [226 

minister  the  law  more  efficiently  and  some  would  be  tempted 
to  say  more  humanely  than  it  otherwise  could.  As  the  com- 
mission itself  characterizes  this  part  of  its  work,  "the  work 
of  the  inspectors  of  the  commission  is  not  to  ferret  out 
points  of  danger  and  to  tabulate  them,  but  it  is  chiefly  to  do 
constructive  educational  work.  .  .  .  The  one  point  which 
the  commissioners  most  strongly  emphasize  with  the  depu- 
ties is  that  they  must  so  present  safety  work  that  the  em- 
ployers will  become  interested  and  will  appreciate  its  prac- 
tical value  from  the  standpoint  of  efficiency."^  The  field 
agents  of  the  commission  are  "  deputies,"  not  "inspectors." 
They  confer  with  each  employer  and  if  there  is  an  excep- 
tional situation  in  his  plant,  a  "  special  order  "  is  obtained 
from  the  commission  to  prevent  any  irritation  from  the 
operation  of  the  general  orders.  The  same  principles  un- 
derlie the  educational  work  of  the  commission  among  tho 
employees,  for  it  is  well  recognized  that  safety  results  quitfi 
as  much  from  the  improved  esprit  de  corps  of  the  workers 
as  from  mechanical  safety  devices. 

In  short,  everything  reasonable  is  done  to  decrease  the 
enormous  loss  of  life  and  limb  which  had  come  to  be  con- 
sidered a  natural  concomitant  of  modem  industry.  "  Rea- 
sonableness "  may  be  said  to  be  the  watchword  of  the  com- 
mission. The  effect  of  its  policy  has  been  to  reduce  irrita- 
tion and  to  keep  the  factory  law  out  of  the  courts.  It  seems 
beyond  doubt  that  this  plan  of  legislation  will  be  held  con- 
stitutional, for  the  courts  have  recognized  this  fourth  branch 
of  government  in  other  fields ;  and  once  the  legality  of  the 
fundamental  law  is  established  there  can  hardly  be  further 
dispute  with  reference  to  an  order  enacted  as  these  orders 
are.  Moreover,  the  new  status  of  the  inspection  depart- 
ment will  keep  most  cases  out  of  court,  for  it  is  human 
nature  to  respond  more  readily  to  solicitous  appeals  than 
to  threatening  commands.  In  fact,  it  has  been  found  in 
Wisconsin  that  once  an  intelligent  employer  has  been  shown 

«  Report  of  the  Wisconsin  Industrial  Commission  on  Allied  Func- 
bons  for  the  Two  Years  Ending  June  30,  1914,  p.  9. 


227]  THE   CONDITIONS   OF    EMPLOYMENT  8 1 

the  most  evident  deficiencies  of  his  establishment,  his  own 
sense  of  justice  will  often  prompt  him  to  undertake  a  thor- 
ough rehabilitation  of  his  plant. 

In  Maryland,  however,  this  scheme  has  not  obtained  any 
considerable  foothold,  and,  though  it  is  instructive  to  ex- 
amine it  in  a  purely  disinterested  spirit  as  a  more  efficient 
system  to  which  we  are  inevitably  tending,  yet  such  a  study 
does  not  take  us  far  in  the  investigation  of  the  existing  laws, 
Maryland,  however,  is  woefully  deficient  in  its  factory  leg- 
islation ;  and,  even  in  studying  the  existing  laws,  this  chap- 
ter will  be  as  often  a  consideration  of  ideals  as  of  actual 
facts. 

Fire  Protection. — The  fire  hazard  can  without  doubt  be 
said  to  be  the  most  important  safety  problem  demanding 
solution  by  the  State  at  the  present  day.  Yet  practically 
every  State,  unless  it  has  adopted  a  new  building  code, 
within  the  last  few  years  has  taken  decidedly  inadequate 
measures  to  meet  the  danger.  Maryland  is  no  exception. 
Despite  the  general  agreement  that  "an  ounce  of  preven- 
tion is  worth  a  pound  of  cure,"  the  legislature  of  Maryland 
allows  every  city  and  county  within  its  bounds  to  expend 
thousands  in  maintaining  an  elaborate  fire  department  and, 
with  the  exception  of  the  City  of  Baltimore,  provides  no 
fire  prevention  law.  Even  in  Baltimore  the  laws  and  ordi- 
nances aimed  at  the  prevention  of  fire  are  not  at  all  in 
proportion  to  the  hazard.  It  needs  a  tragedy  to  arouse  the 
American  public  to  action  and,  because  as  yet  there  has  been 
no  holocaust  in  Baltimore,  we  are  content  to  await  one  be- 
fore enacting  the  proper  laws. 

Practically  the  entire  fire  law  of  Baltimore  and,  in  con- 
sidering this  subject,  Baltimore  will  take  the  place  of  Mary- 
land as  the  unit  of  discussion  since  the  fire  hazard  has  been 
considered  important  enough  for  legislation  only  in  this 
city — practically  the  entire  fire  law  of  Baltimore  is  in  the 
hands  of  the  building  inspector.  Now,  at  the  beginning  of 
this  chapter,  the  excellencies  of  an  elastic  law  were  ex- 
tolled ;  but  the  fire  law  is  one  wherein  certain  fundamental 
6 


82  THE   LABOR   LAW   OF   MARYLAND  [228 

maxims  and  orders  can  be  laid  down  with  precision,  and 
have  been  laid  down  in  states  where  legislation  has  been 
carefully  enacted,  as  in  New  York.  Moreover,  when  the 
law  is  elastic  it  should  be  administered  by  a  competent  com- 
mission imder  some  pressure  to  enact  orders  and  not  by  the 
arbitrary  will  of  one  political  appointee  to  office.  Of  the 
fire  laws  affecting  places  of  labor  which  do  not  depend 
upon  the  discretion  of  the  inspector,  one  forbids  the  "pro- 
prietor of  any  sweatshop  or  factory  where  four  or  more 
persons  are  employed  to  use  any  coal  oil,  gasoline,  etc.  .  .  . 
for  the  purpose  of  lighting  or  heating  in  any  form."*  Not 
only  is  this  the  only  absolute  provision  of  the  fire  law,  but, 
as  far  as  I  can  discover,  it  is  the  only  provision  looking  to 
fire  prevention  and  not  to  fire  escape.  Another  law  does  in 
a  way  provide  a  barrier  against  fire  in  decreeing  the  fire- 
proof construction  of  the  first  floor  of  buildings  to  be  built 
after  1906;^  but  this  fire  prevention  is  in  the  nature  of  a 
protection  to  the  physical  structure  of  the  workshop  and  not 
to  the  lives  of  the  workers,  for  experience  has  demonstrated 
that,  as  far  as  human  life  is  concerned,  fireproof  buildings 
are  as  dangerous  to  those  in  the  buildings  as  non-fireproof 
structures. 

These  two  laws  also  provide  for  a  means  of  escape ;  and 
in  this  respect  are  of  value,  but  being  incomplete  these  pro- 
visions are  less  important  than  those  which  have  just  been 
considered.  In  the  latter  law  it  is  ordered  that,  in  all  new 
buildings,  "the  entire  stairway  shall  be  built  of  fireproof 
material,"  but  as  the  best  fire  escape  is  often  useless  if  it 
is  open  to  the  inroads  of  smoke  and  flame,  the  omission  to 
provide  for  a  fireproof  enclosure  around  the  escape  robs 
this  portion  of  the  law  of  most  of  its  value.  The  earlier 
law  commands  fire  escapes  in  sweatshops  or  factories 
"  where  four  or  more  persons  are  employed  as  garment 
workers  on  other  than  the  first  floor  "  of  the  building.  The 
qualification  of  garment  worker  is,  of  course,  pernicious ; 

*  Laws  1898,  Ch.  123 ;  Baltimore  City  Code  1906,  Art.  4,  Sec.  28a 
^  Baltimore  City  Code  1906,  Art.  3,  Sec.  82. 


229]  THE   CONDITIONS  OF   EMPLOYMENT  83 

and  it  is  alleged  that  this  provision  of  the  building  code  is 
further  weakened  by  the  arbitrary  interpretation  of  the 
word  fire  escape  by  the  building  inspector  whose  require- 
ments are  met  by  one  unenclosed  fireproof  staircase  or  even 
by  two  wooden  staircases  in  separate  parts  of  the  building." 

The  other  laws  enforced  by  the  building  inspector  are 
even  more  lax  and  inefficient,  and  they  are  to  a  certain  de- 
gree overlapping  and  confusing.  One  provides  that  "  all 
manufactories  employing  twenty-five  or  more  persons  .  .  . 
[shall]  have  the  proper  means  of  exit  in  case  of  fire  or 
panic  "  in  the  discretion  of  the  inspector  of  buildings.'^  An 
ordinance  of  the  mayor  and  City  Council  of  Baltimore 
makes  the  same  stipulation  for  buildings  in  which  five  or 
more  are  employed  f  and  a  final  provision  decrees  that  any 
building  "  in  which  operatives  are  employed  in  any  of  the 
stories  above  the  first  story  shall  be  provided  with  such  fire 
escapes,  alarms  and  doors  as  shall  be  directed  and  approved 
by  the  inspector  of  buildings."^  This  ofiicial  has  issued  few 
orders  of  any  importance. 

The  whole  situation  is  unsatisfactory.  The  fire  code  is 
incomplete  and  far  below  the  requirements  of  a  modern 
industrial  city.  It  is  true  that  there  has  been  no  astounding 
loss  of  life  in  any  fire  in  Baltimore,  but  this  must  be  due 
more  to  individual  endeavor  than  to  State  supervision ;  and, 
moreover,  the  per  capita  monetary  loss  in  Baltimore  is  still 
oppressively  high  as  compared  with  European  cities  and  the 
foremost  American  cities.  A  systematic  revision  of  the  fire 
law  should  be  undertaken.  In  this  respect  Baltimore  might 
profit  by  the  experience  of  New  York.  After  the  terrible 
Triangle  Waist  fire.  New  York  with  the  aid  of  the  Factory 
Investigating  Commission  devised  and  to  a  great  degree 
enacted  a  complete  system  of  fire  laws.^°     This   system, 

«  Miss  Anna  Herkner,  then  Assistant  Chief  of  Maryland  Bureau 
of  Statistics,  is  the  authority  for  this  statement.  See  also  report  of 
this  Bureau  for  1912,  p.  75. 

''  Baltimore  City  Code  1906,  Art.  3,  Sec.  80. 

*  Ordinances  1908-1909,  No.  155,  Sec.  3,  Par.  6. 

8  Baltimore  City  Code  1906,  Art.  3,  Sec.  83. 

1°  See  New  York  Senate  Documents  1913,  vol.  13,  no.  36,  pt.  i,  pp. 
S;^-89;  and  New  York  Consolidated  Laws,  Ch.  31,  Sees.  79-83- 


84  THE   LABOR  LAW  OF   MARYLAND  [23O 

though  in  its  details  entirely  too  stringent  for  the  necessi- 
ties of  Baltimore,  might  well  be  adopted  in  its  fundamentals 
in  this  city.  As  a  prevention  against  fire,  cleanliness  and 
carefulness  are  the  two  essentials.  Fireproof  receptacles 
should,  therefore,  be  required  for  all  inflammable  waste  and 
rubbish,  and  these  receptacles  should  be  emptied  at  least 
once  a  day.  Gas  jets  in  factories  should  be  enclosed  by 
globes  or  otherwise  protected  and  all  smoking  in  factories 
should  be  prohibited  under  penalty.  Furthermore,  to  check 
incipient  fires  automatic  sprinklers  should  be  installed. 
These,  the  New  York  commission  says,  are  absolutely  nec- 
essary above  the  seventh  floor  on  account  of  the  limitations 
of  the  fire  fighting  apparatus,  but  these  limitations  do  not 
trouble  us  much  in  Baltimore  for  the  simple  reason  that 
few  of  our  factories  are  over  six  stories  in  height.  For  the 
benefit  of  the  factory  owner,  it  may  be  said  that  these 
sprinklers  have  proved  their  worth  in  from  seventy-five 
to  ninety-five  per  cent  of  the  cases  in  which  they  have  been 
tested  by  actual  conditions,  and  that,  moreover,  they  pay 
for  themselves  in  reduced  insurance  rates. 

For  the  protection  of  those  caught  within  the  building 
by  a  fire  the  commission  formulated  minute  and  elaborate 
rules.  A  fire  alarm  system,  for  which  in  Maryland  there  is 
an  inadequate  provision,  and  regularly  conducted  fire  drills 
participated  in  by  all  the  occupants  of  the  building  are  con- 
ceived as  a  prime  essential  to  avert  panics.  Unhampered 
and  quick  access  to  the  exits  on  the  various  floors  is  also 
a  desideratum  which  is  so  often  sacrificed  to  the  demands 
for  space.  For  the  fire  escapes  themselves  elaborate  rules 
are  laid  down.  In  the  first  place,  outside  escapes  are  uni- 
formly discouraged.  These  escapes  are  practically  of  little 
use,  for  the  inmates  are  not  accustomed  to  use  them;  and 
if  in  a  panic  a  few  find  them  these  few  are  often  too  be- 
wildered to  use  them  efficiently.  Moreover,  in  winter  the 
outside  escapes  are  often  slippery,  and  the  smoke  and  flames 
pouring  out  of  a  window  opening  on  them  render  them  en- 
tirely useless.     The  most  efficient  escapes  are  horizontal 


231]  THE   CONDITIONS  OF   EMPLOYMENT  85 

exits  through  a  fire  wall  traversing  the  whole  length  of  the 
building  from  ground  to  roof.  This  divides  the  structure 
into  two  fireproof  compartments  and,  it  is  perfectly  obvi- 
ous, furnishes  an  ideal  means  of  escape.  If  this  is  imprac- 
ticable the  same  end  may  be  attained  by  the  cooperative  use 
by  two  buildings  of  the  party  wall.  An  enclosed  fireproof 
staircase  within  or  attached  to  the  building  is  another  ap- 
proved method  of  escape  and  if  large  enough,  this  staircase 
is  perfectly  efficient.  The  New  York  building  code  fur- 
nishes minute  regulations  as  to  the  relation  of  the  number 
of  occupants  to  the  width  of  the  various  kinds  of  fire  es- 
capes, but  what  has  been  said  is  sufficient  to  show  the  mag- 
nitude of  the  improvement  possible  and  necessary  in 
Maryland. 

Protective  Devices. — In  its  provisions  for  the  safeguard- 
ing of  dangerous  machines  the  Maryland  labor  law  is,  if 
anything,  more  deficient  than  its  provisions  against  fire. 
There  are  a  few  laws  decreeing  the  inspection  of  scaffold- 
ing^^ and  boilers^^  with  provisions  for  their  safety,  but  that 
is  about  all.  There  are,  it  is  true,  some  general  provisions 
on  the  statute  books,  but  these,  though  they  might  be  most 
prolific  and  efficient,  are  for  the  most  part  entirely  abortive. 
Thus  in  the  compensation  law^^  reference  is  made  to  the 
power  of  the  Accident  Commission  to  order  safety  devices 
in  the  factories ;  but  as  yet  this  power  has  not  been  exer- 
cised, and  even  if  it  were,  the  exercise  would  possibly  be 
unconstitutional  because  of  the  lack  of  notice  in  the  title  of 
the  act.  Again,  the  building  inspector  has  the  power  to  com- 
pel the  repair  or  reconstruction  of  parts  of  buildings  which 
"endanger  the  safety  of  their  occupants,""  and  under  his 
power  to  issue  permits  for  electrical  machines^^  he  may 
compel  the  use  of  safety  devices ;  but  these  provisions  have 
been  bootless.    These  deficiencies  in  Maryland  are  especially 

11  Code  191 1,  Art.  48,  Sees.  75-79. 

12  Baltimore  City  Charter  1915,  Sees.  572-589- 

13  Laws  1914,  Ch.  800,  Sec.  54.     Code  1914,  Art.  loi,  Sec.  55- 

14  Baltimore  City  Ordinances  190S-1909,  No.  155,  Sec.  3,  Par.  7. 
«  Baltimore  City  Code  1906,  Ords.  Art.  3,  Sec.  45- 


86  THE   LABOR   LAW   OF    MARYLAND  [232 

glaring  when  it  is  remembered  that  Wisconsin  and  Massa- 
chusetts by  means  of  orders  from  their  industrial  commis- 
sions and  New  York  by  means  of  legislative  enactments 
and  orders  have  formulated  an  elaborate  system  of  safety 
regulations  for  the  benefit  of  their  working  people. 

Under  the  head  of  safety  devices,  though  here  the  per- 
sonal rather  than  the  material  element  is  concerned,  may 
be  mentioned  the  full-crew  railroad  law.^®  This,  however, 
the  railroads  have  demonstrated  to  be  not  a  valid  safety 
measure,  but  a  mere  sop  to  the  unions. 

Requiring  the  same  brief  mention,  but  actually  of  much 
more  importance,  are  the  safety  and  inspection  provisions 
for  mines  in  Alleghany  and  Garrett  counties.^^  These  are 
minute  and  technical  provisions,  an  extended  discussion  of 
which  would  hardly  lend  interest  to  this  study.  The  details 
are  most  technical  and  quite  beyond  the  comprehension  of 
a  layman.  Suffice  it  to  say  that  the  coal  mines  of  Maryland 
are  considered  as  safe  as  any  in  the  country,  but  whether 
that  is  because  of  these  enactments  or  because  of  the  in- 
herent nature  of  the  mines  would  require  an  investigation 
quite  beyond  the  scope  of  this  monograph. 

Sanitation. — In  the  field  of  sanitary  legislation  the  statute 
book  of  Maryland  until  the  legislative  session  of  1914  was 
equally  deficient.  In  that  year  special  laws  regulating  tene- 
ment houses  and  food-producing  establishments  set  rather 
high  standards  in  those  particular  fields,  but  left  the  gen- 
eral law  totally  inadequate.  There  was  prior  to  1914  a 
general  law  providing  that  "all  factories,  etc.  ...  in  this 
State  shall  be  kept  in  a  cleanly  condition  and  free  from 
effluvia  arising  from  any  drain,  privy  or  other  nuisance ;  and 
no  factory,  manufacturing  establishment  or  workshop  shall 
be  so  overcrowded  while  work  is  carried  on  therein  as  to 
be  injurious  to  the  health  of  the  persons  employed  therein, 
and  every  such  factory,  etc.,  shall  be  well  and  sufficiently 

"Code  1911,  Art.  23,  Sees.  331-335. 

"Code  Public  Local  Laws  1888,  Art.  I,  Sees.  207-209;  Art.  12, 
Sec.  161-164. 


233]  ^^^   CONDITIONS   OF    EMPLOYMENT  8/ 

lighted  and  ventilated  in  such  manner  as  to  render  harm- 
less, as  far  as  practical,  all  gases,  etc.,  generated  in  the 
course  of  the  process  .  .  .  carried  on  therein,  which  may 
be  injurious  to  health  "  ;^^  but  the  Bureau  of  Industrial  Sta- 
tistics and  Inspection  to  which  by  means  of  a  court  pro- 
ceeding was  entrusted  the  enforcement  of  this  law  found  it 
absolutely  impracticable  because  of  the  generality  of  its  pro- 
visions. It  was  impossible  to  convict  in  any  court  of  justice : 
an  essential  of  a  criminal  statute  is  definiteness.  The  legis- 
lature in  1914  repealed  this  law,  and  substituted  therefor 
a  law  requiring  the  licensing  of  all  places  manufacturing 
"articles  of  clothing,  hats,  gloves,  furs,  feathers,  artificial 
flowers,  purses,  cigars  or  cigarettes. "^^  The  only  condition 
precedent  to  the  grant  of  this  license  is  the  necessity  of  a 
minimum  of  five  hundred  cubic  feet  of  air  space  for  every 
person  employed — a  necessary  provision,  but  not  of  highly 
practical  value — and  the  compliance  with  the  existing  laws 
and  ordinances  applying  to  these  workshops.  The  real  pur- 
pose of  this  law  as  acknowledged  by  its  sponsors,  the  indus- 
trial bureau,  was  not  to  efifect  an  improvement  of  labor 
conditions,  but  to  show  matters  in  their  true  light,  to  ex- 
pose the  real  status  of  factory  regulation,  to  relieve  the 
Board  of  Labor  of  the  responsibility  of  enforcing  a  practi- 
cally nonexistent  law  and  to  shift  this  responsibility  to  the 
city  officials  who  have  the  real  means  of  coercion. 

This  law,  it  is  obvious,  is  merely  an  additional  means  of 
enforcing  the  general  laws  of  the  State  in  these  specified 
industries.  There  is,  however,  no  general  enactment  in 
Maryland  applying  throughout  the  State ;  the  nearest  ap- 
proach to  a  general  sanitary  provision  is  an  ordinance  of 
Baltimore  City  decreeing  separate  toilets  for  the  sexes  to 
be  kept  "  in  a  cleanly  and  safe  condition. "^^  Therefore,  if 
an  industry  is  not  located  in  a  dwelling  or  tenement  house, 
if  it  is  not  engaged  in  manufacturing  food  products,  and 

18  Laws  1884,  Ch,  265.    Code  1904,  Art.  27,  Sec.  243. 
18  Laws  1914,  Ch.  779,  Sec.  246. 


18  Laws  1884,  Ch,  265.    Code  1904,  Art.  27,  Se 

18  Laws  1914,  Ch.  779,  Sec.  246. 

20  Baltimore  City  Code  1906,  Art.  14,  Sec.  158. 


88  THE   LABOR   LAW   OF    MARYLAND  [234 

if  it  is  not  in  Baltimore  City,  it  has  to  comply  with  abso- 
lutely no  sanitary  regulations,  and,  indeed,  in  these  non- 
regulated  industries  the  sanitary  condition  has  been  found 
to  be  very  poor.  No  provision  is  made  for  the  cleanliness 
of  factories,  an  essential  to  good  health  as  well  as  to  fire 
protection.  No  provision  is  made  for  ventilation,  a  matter 
which  is  the  subject  of  numerous  administrative  orders  in 
other  States.  Not  only  is  the  ventilation  of  factories  left 
to  private  enterprise,  but  the  slight  provision  that  there  is 
for  toilets  does  not  provide  for  their  ventilation  and  factory 
toilets  are  very  generally  ventilated  through  the  work  rooms 
of  the  factory.  Only  in  Carroll  County^^  is  there  any  pro- 
vision for  a  forced  ventilation  by  suction  fans  to  preserve 
the  workers  from  lung  diseases  brought  on  by  inhaling  dust 
and  noxious  gases.  To  be  entirely  fair,  the  law  requiring 
the  sprinkling  of  the  floors  of  shirt  factories  every  morn- 
ing22  should  be  mentioned  here,  but  the  relief  is  so  slight 
and  the  method  is  so  antiquated  that  this  narrowly  limited 
law  cannot  greatly  mitigate  the  indictment  of  Maryland. 
Finally,  if  we  omit  consideration  of  minor  requirements, 
there  is  in  Maryland  no  law  looking  to  the  proper  lighting 
of  factories ;  and  the  employer  is  at  full  liberty  to  strain 
the  eyesight  of  his  workers  to  the  point  of  exhaustion.  Al- 
though I  have  not  made  a  thorough  investigation  at  first 
hand,  some  of  the  actual  conditions  described  I  have  myself 
observed ;  and  if  some  first  hand  investigator  seeks  to  ex- 
tenuate these  failings  of  the  Maryland  law  by  maintaining 
that  actual  conditions  demonstrate  on  the  whole  that  Mary- 
land does  not  as  yet  need  regulatory  laws,  I  would  answer 
that  it  is  always  easier  to  prohibit  by  legislation  things 
which  are  not  in  existence  and  which  do  not  represent  as 
yet  any  vested  right.  Inasmuch,  moreover,  as  other  States 
have  had  to  cope  with  these  evils,  now  is  the  time  for  Mary- 
land to  legislate. 

In  decided  contrast  to  this  inefficient  phase  of  the  law  is 

21  Laws  1894,  Ch.  202.    Applies  only  to  stone-grinding  mills. 

22  Code  191 1,  Art.  43,  Sec.  102. 


235]  "^^^   CONDITIONS   OF   EMPLOYMENT  89 

the  recently  enacted  sanitary  inspection  law."  The  act 
makes  minute  provision  for  the  regulation  of  every  place 
in  which  "  food  products  are  manufactured,  packed,  stored, 
deposited,  collected,  prepared,  produced  or  sold."-*  In  ad- 
dition there  is  vested  in  the  State  Board  of  Health,  which 
is  entrusted  with  the  administration  of  the  law,  full  power 
to  promulgate,  "  from  time  to  time,  .  .  .  such  general  rules 
and  regulations  .  .  .  for  the  government  of  the  inspectors 
and  employees  of  the  board  as  may  be  necessary,"  provided 
it  gives  due  notice  of  these  orders  with  the  opportunity  of 
a  hearing  for  those  concerned.-^  Since  the  administration 
of  the  law  is  vested  in  the  Board  of  Health,  its  purpose  is 
plainly  to  protect  the  health  of  the  community  rather  than 
to  benefit  the  workers,  but,  nevertheless,  improved  sur- 
roundings cannot  but  accrue  to  the  advantage  of  the  em- 
ployees. In  so  far,  however,  as  the  Board  of  Health  con- 
siders this  law  a  pure  health  measure,  its  orders  will  be 
and  in  fact  have  been  much  less  in  behalf  of  the  laborers 
than  if  the  administration  had  been  vested  in  the  labor 
department. 

The  specific  provisions  for  the  sanitary  norms  to  be  ap- 
plied to  the  various  food  factories  are  almost  ideal  in  their 
nature.2^  It  is  first  enacted  that  all  of  the  rooms,  furniture 
and  implements  used  in  the  preparation  of  food  products 
shall  be  kept  in  "  a  clean  and  sanitary  condition,"  unclean 
and  unsanitary  meaning  the  lack  of  protection  of  the  food 
itself  against  flies,  filth,  etc.,  the  failure  to  remove  all  dirt 
and  waste  product,  and  the  failure  to  keep  the  persons  of 
the  employees  clean.  It  might  have  been  provided  that  the 
side  walls  and  ceilings  should  be  regularly  lime-washed,  but 
in  the  absence  of  this  stipulation  it  is  to  be  expected  that 
the  Board  of  Health  will  issue  orders  to  fill  the  gap.  It  is 
further  enacted  that  "every  .  .  .  place  occupied  .  .  .  for 

23  Laws  1914,  Ch.  678. 

2*  Ibid.,  Sec.  I. 

25  Ibid.,  Sec.  7. 

2«  Ibid.,  Sec.  3,  Subsecs.  a-f. 


90  THE   LABOR  LAW   OF   MARYLAND  [236 

the  preparation,  etc.,  of  food  shall  have  convenient  toilet  or 
toilet  rooms  which  shall  be  kept  separate  from  the  rooms 
where  the  process  of  production,  etc.,  is  conducted,  and  all 
parts  of  such  toilet  rooms  shall  be  kept  clean."  Moreover, 
the  workers  are  forbidden  to  sleep  in  the  workroom  of  a 
bakeshop,  etc.,  or  in  the  kitchen  or  dining-  room  of  a  hotel, 
restaurant  or  boarding  house ;  and  the  employer  is  forbid- 
den to  employ  any  worker  affected  with  a  communicable 
disease  unless  he  can  produce  a  certificate  from  the  Board 
of  Health  permitting  him  to  be  employed  in  such  a  place. 
Finally,  washrooms  are  ordered  to  be  constructed  in  these 
factories.  Further  stipulations  are  laid  down  for  canneries 
in  the  State,  but  these  are  largely  technical  and  do  not  add 
much  to  the  general  provisions. 

There  is  only  one  serious  omission  from  this  law :  cellar 
bakeries  are  not  prohibited.  It  is  obvious  that  "  a  cellar  is 
unfit  both  for  the  manufacture  of  food  stuffs  and  for  the 
habitation  of  workers.  There  can  be  no  natural  light  under 
the  most  favorable  conditions  in  a  cellar.  They  are  also 
very  difficult  places  to  ventilate  unless  a  mechanical  system 
is  installed,  which  is  out  of  the  question  in  the  ordinary 
small  bakery.  .  .  .  They  cannot  be  kept  as  clean  as  other 
parts  of  the  house,  for  they  are  semi-dark,  and  contain  most 
of  the  plumbing  pipes  and  fixtures.  They  are  also  the  nat- 
ural habitation  of  insects  and  rodents.""  Although  it  is 
true  that  conditions  in  Baltimore  bakeries  are  not  nearly  so 
bad  as  they  are  in  New  York  and,  in  fact,  it  has  been  said 
that  there  are  no  cellar  bakeries  in  this  city,^^  the  absence 
of  the  evil,  as  has  been  contended  in  another  connection, 
constitutes  no  real  argument  against  sound  prophylactic 
legislation. 

The  Tenement  Law. — In  1914,  also,  Maryland  obtained 
perhaps  as  efficient  a  homework  or  tenement  law  as  is  pos- 

27  New  York  Factory  Investigation  Committee  Report,  Senate 
Documents  of  New  York,  1913,  vol.  13,  no.  36,  pt.  I,  p.  222. 

28  Dr.  Caspari  of  the  State  Board  of  Health,  who  has  charge  of 
the  administration  of  this  act  is  the  authority  for  this  statement. 


[237  THE   CONDITIONS   OF   EMPLOYMENT  9 1 

sible.^^  A  tenement  inspection  law  is  practically  always 
inadequate  because  of  the  impossibility  of  proper  inspection 
even  with  the  largest  corps  of  well-trained  inspectors.  A 
sufficient  corps  of  inspectors  may  perhaps  keep  the  tene- 
ments free  from  filth  and  disease,  but  an  absolutely  efficient 
administration  of  the  child  labor  law  or  any  other  law  affect- 
ing the  terms  of  labor  is  unattainable.  Investigations  in 
New  York  have  shown  that  children  too  young  to  be  sent 
to  school  were  put  to  work  helping  the  parent  and  that  chil- 
dren of  school  age  were  compelled  to  give  help  for  such 
unreasonable  hours  that  their  school  work  could  hardly  be 
of  any  practical  benefit.^"  Moreover,  it  was  argued  by  some 
of  the  witnesses,  that  in  view  of  the  low  wages  paid  tene- 
ment workers  it  could  not  be  denied  that  some  manufactur- 
ers were  obtaining  an  unfair  advantage  in  free  rent  and  light 
at  the  ultimate  cost  of  the  State  in  broken-down  workers ; 
but,  pregnant  as  this  contention  may  be  in  forcefully  pre- 
senting some  of  the  evils  of  home  work,  it  cannot  be  said 
to  be  a  potent  argument  for  State  interference.  If  the  State 
determines  to  regulate  hours  of  labor,  wages  of  labor  and 
child  labor,  and  finds  it  impossible  to  do  so  while  tenement 
work-rooms  exist,  then,  granting  that  it  is  within  the  power 
of  the  State  to  undertake  this  regulation,  the  State  would 
have  the  right  to  prohibit  home  work.  The  health  of  the 
community  can  be  safeguarded  by  adequate  or  approxi- 
mately adequate  inspection  of  the  conditions  of  employ- 
ment, and  that  is  the  subject  of  this  chapter. 

The  act  provides  for  the  registration  of  every  factory, 
workshop,  or  mercantile  establishment  employing  five  or 
more  people  f^  and  every  room  or  part  of  a  tenement  houss 
which  is  to  be  used  for  manufacture  or  repair  work,  except, 
of  course,  the  personal  work  of  the  occupants,  must  first 
be  licensed  by  the  State  Board  of  Labor  and  Statistics.^^    In 

29  Laws  1914,  Ch.  779. 

30  Conducted  by  the  Factory  Investigating  Committee. 

31  Code  1914,  Art.  27,  Sec.  ^4,  as  amended  by  Laws  1916,  Ch.  406. 

32  Ibid.,  Sec.  245. 


92 


THE   LABOR  LAW   OF   MARYLAND  [238 


New  York  the  licensing  of  the  whole  tenement  as  a  unit 
has  been  found  more  efficient  than  the  licensing  of  each 
workshop  separately  since  it  interests  the  owner  of  the  tene- 
ment in  the  conditions  of  the  separate  workshops  and  makes 
an  additional  person  responsible  for  the  sanitary  conditions. 
This  is  perhaps  an  improvement  on  the  Maryland  law,  but 
not  of  fundamental  miportance,  since,  as  it  is,  the  manu- 
facturer contracting  out  to  home  workers  is  also  compelled 
to  see  that  the  provisions  cf  the  act  are  complied  with  in 
the  homes  to  which  he  sends  his  work.^^  These  adminis- 
trative features  are  the  strong  points  of  the  law,  and  es- 
pecially so  when  coupled  with  the  minimum  requirement  of 
one  inspection  every  six  months — a  minimum,  however, 
much  below  comparative  efficiency,  but  expedient  for  the 
sake  of  economy. 

Although  below  the  most  exacting  standards,  the  sani- 
tary provisions  of  the  act,  if  conscientiously  enforced,  may 
raise  home  work  to  a  satisfactory  sanitary  level.  The  Board 
of  Labor  and  Statistics  has  powerful  means  in  its  hands  to 
enforce  these  provisions,  for  much  is  left  to  its  discretion 
in  granting  the  licenses  and  it  has  power  to  revoke  them 
upon  the  slightest  infringement  of  the  conditions  of  their 
grant.^*  The  board  may  refuse  the  license  if  the  place  can- 
not show  a  clean  health  record.  If  the  health  record  be 
clean,  then  an  inspection  of  the  place  is  necessary;  and,  if 
the  board  through  its  inspectors  "ascertain  that  such' room 
or  apartment  is  free  from  .  .  .  communicable  disease  and 
is  in  proper  sanitary  condition,  it  shall  grant  a  license  "  for 
the  place  to  be  used  by  members  of  the  family  only,  and 
that  only  to  the  number  of  one  worker  to  every  five  hun- 
dred cubic  feet  of  air  space.^^  Though  the  New  York  com- 
mission recommended  more  stringent  sanitary  regulations 
than  these,  Massachusetts  has  practically  the  same  provi- 
sions as  has  Maryland.  While  not  ideal,  therefore,  the 
Maryland  provisions  at  least  may  be  said  to  be  adequate. 

8*  Ibid.,  Sec.  247. 
a*  Ibid.,  Sec.  248. 
'5  Ibid.,  Sec.  245. 


239]  THE   CONDITIONS   OF   EMPLOYMENT  93 

In  actual  operation,  however,  the  law  is  not  so  satisfac- 
tory. The  final  determination  of  the  sanitary  condition  has 
been  left  in  the  hands  of  the  local  health  department,  for 
the  board  has  found  it  inexpedient  to  controvert  the  find- 
ings of  the  health  authorities  as  to  health  conditions.  The 
effect  of  this  has  been  that  practically  no  licenses  have  been 
refused  because  of  the  presence  of  communicable  diseases : 
the  health  authorities  rarely  find  any  evidence  of  such  dis- 
eases or,  if  any  is  found,  the  conditions  are  soon  corrected. 
It  is  hardly  within  the  scope  of  this  study  to  indict  the 
health  officials,  but  the  performance  of  their  part  in  the 
enforcement  of  the  law  has  been,  to  say  the  least,  very 
desultory. 


CHAPTER  V 
The  Terms  of  Employment 

Foreword. — The  question  of  the  extent  to  which  the 
State  should  interfere  with  the  terms  of  employment  is  one 
of  the  most  acute  of  modern  legislative  problems.  In  gen- 
eral, it  may  be  said  that  as  the  State,  on  the  one  hand,  is  in 
most  cases  warranted  in  regulating  the  conditions  of  em- 
ployment, so,  on  the  other  hand,  in  most  cases  there  must 
be  actual  and  positive  cause  for  the  extension  of  State  activ- 
ity to  the  control  of  the  terms  of  employment.  In  general, 
the  problem  of  the  hours  and  wages  of  employment  should 
be  solved  by  the  bargaining  of  the  wage-earner  and  the  em- 
ployer. 

The  extent  to  which  the  State  should  interfere  with  the 
terms  of  employment  is,  of  course,  one  of  the  questions  of 
the  science  of  legislation,  and  it  should  be  solved  according 
to  the  norms  and  maxims  of  that  science.  But  it  is  practi- 
cally impossible  for  a  student  of  American  government  to 
consider  legislative  problems  solely  in  the  light  of  the  prin- 
ciples of  legislation.  If  he  could  do  so,  his  task  would  be 
comparatively  simple.  An  almost  religious  regard  for  the 
law  of  the  Constitution  has  so  imbedded  itself  in  the  legal 
thought  of  the  United  States  that  to  think  of  framing  an 
enactment  without  scrupulous  respect  for  its  constitutional- 
ity would  be  unpardonable  sacrilege.  It  is  this  which  ac- 
counts for  the  obvious  and  deplorable  lack  of  consistency 
and  scheme  in  the  labor  legislation  of  every  State.  The 
grossest  inconsistency  is  apparent  in  the  enactments  con- 
cerning labor  unions  and  the  terms  of  the  contract  of  em- 
ployment. 

In  attempting  to  outline  an  ideal  and  consistent  scheme 
of  legislation,  I  shall  attempt  to  prove  in  a  subsequent  chap- 

94 


241]  THE   TERMS   OF   EMPLOYMENT  95 

ter  that  legislation  regulating  the  terms  of  employment  is 
only  justified  as  a  temporary  expedient.  Labor  legislation, 
as  has  been  so  often  iterated,  is  a  means  of  equalizing  the 
bargaining  power  of  labor  and  capital,  but  the  greatest 
equalizer,  it  will  be  shown,  is  the  union.  Until  the  ideal  of 
complete  unionization  is  attained,  State  interference  with 
the  terms  of  employment  is  justified.  The  courts  have  up- 
held legislation  in  respect  to  the  hours  and  wages  of  em- 
ployment of  women  and  children,  but  have  quite  as  unani- 
mously overthrown  similar  legislation  for  unorganized 
workingmen  unless  the  occupation  is  especially  danger- 
ous. They  have  thus  established  a  principle  of  American 
legislation,  but  a  principle  which  is  unsound.  It  seems  to 
be  based  upon  two  fundamental  conceptions.  In  the  first 
place,  women  and  children  because  of  their  weaker  nature 
have  all  through  the  common  law  been  considered  just  re- 
cipients of  the  protection  of  the  law.  The  courts  have, 
therefore,  always  rather  welcomed^  legislation  delimiting 
the  employment  of  women  and  children.  Their  antagonism 
to  legislation  for  adult  males,  however,  is  unjustified,  for, 
although  the  weakness  of  women  and  children  does  entitle 
them  to  additional  protection  from  the  State  against  undue 
influence  and  fraud,  the  unorganized  male  laborer  is  in  as 
unfair  a  position  in  making  a  wage  contract  with  the  aver- 
age employer  as  the  weakest  woman.  Mental  strength  has 
little  effect  against  a  dominating  force.  In  the  second  place, 
the  courts  in  upholding  labor  legislation  of  this  kind  put  it 
most  often  in  the  rubric  of  health  laws.  Of  course,  it  is 
true  that  the  physical  condition  of  women  and  children  is 
less  resistant  than  that  of  men,  and,  moreover,  it  is  easy  to 
argue  that  the  welfare  of  the  community  is  more  strictly 
connected  with  the  health  of  women  and  children  than  with 
that  of  men.  But  this  is  largely  a  matter  of  degree  and 
hardly  the  occasion  for  such  a  strict  drawing  of  constitu- 
tional lines.    A  needless  inconsistency  is  the  result. 

1 1  think  that  I  am  justified  in  the  use  of  this  word  in  view  of  the 
decision  in  Bosley  v.  McLoughlin,  236  U.  S.  385, 


q6  the   labor   law   of   MARYLAND  [242 

If  to  this  inconsistency  is  added  the  pressure  of  all  kinds 
of  reform  organizations  for  every  conceivable  limitation  of 
the  terms  of  labor  and  the  cheap  politics  displayed  by  can- 
didates competing  for  the  vote  of  the  laboring  class,  the 
possibilities  of  a  shapeless  system  of  labor  legislation  seem 
of  limitless  magnitude.  This  shapelessness  has  been  more 
than  achieved.  Instead  of  the  almost  total  absence  of  leg- 
islation regulating  hours  and  wages  of  labor  which  would 
be  the  case  under  ideal  conditions,  the  statutes  of  the  aver- 
age State  are  an  enervating  hodge-podge.  Antiquated  and 
useless  legislation  is  left  on  the  books  to  the  confusion  of 
the  lawyer  and  student;  conflicting  laws  are  enacted  with- 
out taking  the  trouble  to  repeal  the  earlier  laws ;  criminal 
laws  without  penalties  are  set  forth  as  sops  to  some  now 
forgotten  reform  movement ;  and  high  sounding  laws  with 
fatal  exceptions  are  in  endless  abundance.  This  is  a  con- 
cise and  exact  description  of  the  legislation  of  Maryland 
in  spite  of  some  recent  efforts  of  the  legislators.  There  is 
absolutely  no  unity  or  system  present.  It  must  not  be  un- 
derstood, however,  that  Maryland  is  unique  in  this  respect. 
Except  for  those  States,  of  which  Wisconsin  is  the  fore- 
most example,  which  have  practically  repealed  all  their  pre- 
vious labor  law  and  left  to  a  commission  the  evolution  of  a 
new  system,  every  State  of  the  Union  is  equally  guilty. 
Even  New  York,  which  has  recently  adopted  almost  an  en- 
tire new  code  of  labor  legislation  has  been  remiss  in  failing 
to  repeal  the  earlier  law.  But  for  an  estimate  of  the  status 
of  the  laborer  in  Maryland,  some  study  of  this  phase  of  the 
law  is  necessary.  For  the  purposes  of  this  chapter  I  have, 
therefore,  arranged  the  laws  under  three  heads :  first,  those 
prohibiting  the  employment  of  certain  classes  in  specified 
occupations;  second,  those  regulating  the  hours  of  labor; 
and,  third,  those  regulating  the  wages  of  labor. 

Prohibitions  of  Employment.— The  absolute  prohibitions 
contained  in  the  Maryland  labor  law  with  the  two  excep- 
tions referring  to  the  employment  of  women  as  barmaids'* 


2  Code  Public  Local  Laws  1888,  Art.  13,  Sees.  195-196. 


243]  "^^^   TERMS   OF   EMPLOYMENT  97 

and  as  waitresses  in  places  of  amusement^  are  all  confined 
to  child  labor.  The  laws  forbidding  absolutely  the  use  of 
dangerous  materials  or  methods  in  any  occupation  have  ob- 
tained no  foothold  in  this  State.  Indeed,  there  are  few 
laws  of  this  kind  in  the  country,  only  one,  the  federal  pro- 
hibitive tax  on  the  phosphorous  matchmaking  industry, 
being  a  typical  example.  An  anti-homework  law  might  be 
desirable.  This  type  of  legislation  is  much  more  effective 
than  the  regulatory  laws  described  in  the  last  chapter,  to 
which  they  are  closely  related,  but  the  American  tendency 
is  towards  regulation  rather  than  absolute  prohibition. 

The  usual  prohibitions  to  be  found  in  any  State,  then, 
refer  to  child  labor ;  the  education  of  the  child  and  the  pro- 
tection of  the  young  person,  as  he  is  technically  called,  being 
the  ends  of  the  law.  Thus  in  Maryland  no  minor  under 
twenty-one  years  of  age  is  permitted  to  work  in  or  in  con- 
nection with  any  place  where  spirituous  liquors  are  sold.* 
It  seems  exceedingly  doubtful  whether  this  provision  is 
strictly  enforced  for  the  difficulties  of  administration  are 
obvious.  Prohibition  reform  would,  of  course,  be  more  effi- 
cient; and  even  putting  the  enforcement  in  the  hands  of  the 
Liquor  License  Board  might  aid  in  increasing  the  efTective- 
ness  of  the  law. 

Children  under  the  age  of  eighteen  years,  as  in  most 
other  industrial  States,  are  forbidden  to  work  in  or  about 
"  blast  furnaces,  docks  or  wharves ;  or  in  the  outside  erec- 
tion and  repair  of  electric  wires ;  in  the  running  or  man- 
agement of  elevators,  lifts  or  hoisting  machines  or  dyna- 
mos ;  in  oiling  or  cleaning  machinery  in  motion ;  ...  at 
switch  tending,  gate  tending,  track  repairing  or  as  brake- 
men,  firemen,  engineers,  etc.,  upon  railroads ;  ...  or  in  or 
about  establishments,  where  .  .  .  high  or  dangerous  explo- 
sives are  manufactured,  compounded  or  stored  .  .  ."  or  in 

3  Code  1914,  Art.  27,  Sees.  44:^-443. 

*Laws  1912,  Ch.  731,  Sec.  22  (to  be  Art.  100  of  Code);  Code 
191 1,  Art.  56,  Sec.  98. 


^8  THE   LABOR   LAW   OF    MARYLAND  [244 

Other  like  occupations  wherein  their  immaturity  would  ren- 
der them  inefficient.^ 

Children  under  sixteen  years  of  age  are  rigidly  circum- 
scribed in  their  employment.  They  are  forbidden  to  be 
employed  around  dangerous  machines  as  circular  or  band 
saws,  picker  machines  or  machines  used  in  picking  wool, 
cotton  or  any  other  material,  job  or  cylinder  printing 
presses  operated  by  machinery,  stamping  machines  and 
numerous  others  specified  at  great  length.  They  are  not 
permitted  to  work  upon  any  steam,  electric  or  hydraulic 
railway  or  on  any  machinery  operated  by  power  other  than 
hand  or  foot  power,  or  upon  any  vessel  or  boat  engaged  in 
navigation  or  commerce.  Occupations  wherein  dangerous 
or  poisonous  acids  are  used  are  closed  to  them,  as  is  min- 
ing and  the  allied  occupation  of  tunneling.  They  are  for- 
bidden to  perform  in  any  concert  hall  or  playhouse  in  con- 
nection with  any  professional  theatrical  performance,  ex- 
hibition or  show.^ 

There  is  also  a  prohibition  of  the  employment  of  females 
under  sixteen  where  such  employment  compels  them  to  re- 
main constantly  standing.'^  This  is  really  more  of  a  regu- 
lation of  the  conditions  than  of  the  terms  of  employment ; 
and,  though  somewhat  vague,  it  is  fundamentally  an  exem- 
plary piece  of  legislation  in  which  Maryland  seems  to  have 
established  a  precedence.  Moreover,  no  child  under  six- 
teen can  be  employed  in  any  occupation  until  he  has  ob- 
tained a  permit  from  the  Bureau  of  Statistics  in  Baltimore 
City  or  from  the  superintendent  of  schools  in  a  county. 
These  employment  permits  or  certificates  are  of  two  classes, 
general  and  vacation  employment  certificates,  and  are  is- 
sued only  on  the  conditions  of  a  satisfactory  school  record, 
of  a  favorable  report  from  a  competent  physician,  and  evi- 
dence that  the  child  is  of  legal  age  to  work  in  the  desired 

"Laws  1912,  Ch.  731,  Sec.  21. 

«  Laws  1912,  Ch.  731,  Sees.  7S,  as  amended  by  Laws  1916,  Ch.  222, 
and  see  Code  1914,  Art.  27,  Sec.  346. 
^  Laws  1916,  Ch.  222,  Sec.  23. 


245]  THE  TERMS   OF   EMPLOYMENT  99 

occupation.^  The  granting  of  these  certificates  is  regulated 
moreover  by  stringent  administrative  provisions.  Similar 
to  these  certificates,  but  with  the  necessary  differences,  are 
the  badges  granted  to  boys  between  the  ages  of  twelve  and 
sixteen  to  sell  papers  and  periodicals  on  the  street  during 
daylight.^ 

Subject  to  these  stipulations  and  exceptions,  it  is  legal  in 
Maryland  to  employ  children  above  the  age  of  fourteen. 
Children  under  fourteen  are  forbidden  to  be  employed  "  in, 
about  or  in  connection  with  any  mill,  factory,  mechanical 
establishment,  tenement  house,  .  .  .  office  building,  .  .  . 
public  stable,  garage  or  in  any  mercantile  establishment 
.  .  .  ,  place  of  amusement,  club,  etc.,"  in  short,  in  most 
occupations. ^°  The  fourteen  year  age  limit  is  also  estab- 
lished to  a  certain  degree  by  prohibiting  the  employment 
under  that  age  during  school  hours.^^  There  are,  however, 
in  the  Maryland  law  two  provisions  allowing  the  employ- 
ment outside  of  school  hours  of  children  above  the  age  of 
twelve  in  "  canning  or  packing  establishments,"^^  and  of 
males  above  the  age  of  twelve  in  the  sale  of  periodicals  and 
newspapers  on  the  streets.  Boys  above  ten  may  with  a 
permit  distribute  papers  on  a  regular  route  between  the 
hours  of  3  130  and  5  :oo  p.m.^^  If  the  twelve  year  mini- 
mum is  enforced  in  canneries  and  allied  occupations,  Mary- 
land children  are  better  protected  than  those  in  most  other 
canning  States,  in  New  York,  at  least,  it  having  been  found 
practically  impossible  to  enforce  a  fourteen  year  minimum.^* 

On  the  whole,  this  rubric  of  the  Maryland  labor  law  at- 
tains as  high  a  standard  as  that  set  anywhere  in  the  coun- 
try.   The  Child  Labor  Law  is  a  recent  enactment  and  seems 

8  Laws  1912,  Ch.  731,  Sec.  9  ff. 

8  Ibid.,  Sees.  27-33. 

^0  Laws  1912,  Ch.  731,  Sec.  4,  as  amended  by  Acts  1916,  Sec.  222. 

^1  Laws  1912,  Ch.  731,  Sec.  6;  Laws  1912,  Ch.  173. 

12  Laws  1912,  Ch.  731,  Sec.  5. 

^3  Laws  1912,  Ch.  731,  Sec.  26,  as  finally  amended  by  Laws  1916, 
Ch.  222. 

^*  See  Annual  Report  of  Commissioner  of  Labor,  New  York,  1914, 
P-  135. 


lOO  THE   LABOR   LAW   OF    MARYLAND  [246 

to  have  been  drafted  in  a  scientific  and  careful  manner,  fol- 
lowing rather  closely  the  laws  of  New  York  and  Massachu- 
setts, which  mark  a  high  plane  in  the  conservative  reform 
law  of  this  country.  There  is,  however,  one  prohibition 
omitted  in  the  Maryland  labor  law  which  experts  have  come 
to  consider  absolutely  necessary.  Most  European  countries 
and  four  American  States,  Connecticut,  Massachusetts, 
New  York  and  Vermont,  forbid  the  employment  of  women 
for  certain  periods  before  and  after  childbirth.  There  is  no 
doubt  of  the  constitutionality  of  such  a  law,  for  it  has  been 
amply  demonstrated  that  the  community  suffers  from  the 
high  rate  of  mortality  and  morbidity  of  babies  who  fail  to 
receive  sufficient  care  from  their  mothers.  Such  a  law,  how- 
ever, would  involve  a  considerable  step  towards  communism, 
especially  as  the  perfected  plan  would  call  for  some  kind 
of  aid  from  the  State  during  the  period  of  enforced  rest.^^ 

Hours. — The  regulation  of  the  hours  of  labor  has  caused 
the  legislators  of  the  last  quarter  of  a  century  the  greatest 
difficulty.  The  exact  limit  of  their  power  has  not  been 
clearly  defined,  and  they  can  never  be  sure  that  their 
enactments  compelled  by  the  clamors  of  reformers,  eco- 
nomic and  political,  will  be  upheld  by  the  courts.  It  is  in 
fact  within  this  rubric  of  the  labor  law  that  the  attempt  is 
sometimes  made  to  limit  the  police  power  of  the  State. 
Somewhere  a  law  ceases  to  be  an  exercise  of  the  police 
power  and  becomes  a  taking  of  property  without  due  proc- 
ess of  law.  The  doctrine  of  reasonableness  has  been  formu- 
lated by  the  courts,  but  this  doctrine  hardly  gives  any  true 
clue  to  the  problem.  It  is  best  to  say  that  there  is  much 
hopeless  conflict  between  the  courts  and  that  in  the  end  each 
law  must  be  considered  on  its  own  merits. 

The  economic  argument  for  restricting  the  hours  of  labor 
has  been  so  often  iterated  and  reiterated  that  it  has  become 

*5  The  Italian  plan  raises  the  fund  for  the  care  of  the  indigent 
mothers  by  taxing  each  woman  of  child-bearing  age  employed  in  any 
industry  thirteen  cents  a  month,  each  employer  seven  cents  per 
month  per  woman  of  that  age  employed  by  him,  and  by  an  addi- 
tional seven  cents  per  woman  contributed  by  the  state. 


247]  THE  TERMS   OF   EMPLOYMENT  lOI 

shopworn ;  and  it  will  not  be  worth  while  to  set  it  forth  at 
length.  The  arguments  of  the  economists  may  well  be  ac- 
cepted at  their  face  value,  but  must  then  be  considered  from 
the  viewpoint  of  legislation.  The  economic  argument  runs 
something  like  this:  Long  hours  are  physically  injurious. 
Long  hours  stultify  the  intellectual  growth  of  the  individual 
because  of  lack  of  time  for  self-enlightenment.  Long  hours 
lead  to  immorality  and  excess  in  recreation.  Long  hours 
tend  to  lessen  the  influence  of  family  life  and  ultimately  to 
destroy  it.  The  shortening  of  hours  more  than  pays  for 
itself  in  increased  efficiency.^®  And  then,  having  heaped  up 
facts,  the  economist  will  emphasize  one  of  them,  the  physi- 
cal deterioration  or  the  intellectual  stultification,  depending 
on  whether  the  law  in  question  bears  upon  women  or  chil- 
dren. The  courts  accept  this  reasoning  and  uphold  hours- 
of-labor  laws  for  women  and  children.  When  a  law  limit- 
ing the  hours  of  labor  of  men  is  presented  to  them,  the 
courts  have  generally  refused  to  sanction  it,  though  the 
economic  argument  for  it  is  precisely  the  same.  There  is 
here  an  inconsistency  due  to  the  lack  of  a  complete  scheme 
or  philosophy  of  labor  legislation. 

The  limitations  on  the  hours  of  labor  of  children  in  Mary- 
land were  not  of  a  very  high  standard  until  1916.  Prior  to 
that  there  was,  except  for  the  two  provisions  aimed  at  keep- 
ing messengers  and  newsboys  off  the  streets  at  night,"  only 
a  general  prohibition  that  no  child  under  sixteen  should 
labor  more  than  ten  hours  a  day  in  any  manufacturing  busi- 
ness in  the  State  or  in  any  mercantile  establishment  in  Bal- 
timore.^^ Now  there  is  a  strict  prohibition  of  labor  of  chil- 
dren under  sixteen  in  enumerated  occupations,  including 
practically  all  except  canning  and  domestic  labor,  for  more 
than  six  days  in  any  one  week,  or  more  than  forty-eight 

^*  For  a  typical  example,  see  the  brief  prepared  by  Mr.  Louis 
Brandeis  for  the  Consumers'  League  in  Muller  v.  Oregon,  208 
U.  S.  412. 

^^  Laws  1912,  Ch.  731,  Sees.  24-32,  and  see  also  Code  191 1,  Art. 
23,  Sec.  375. 

18  Code  1914,  Art.  27,  Sec.  239;  Laws  1892,  Ch.  443. 


102  THE   LABOR   LAW    OF    MARYLAND  [248 

hours  during  that  time,  or  more  than  eight  hours  in  any  one 
day,  or  between  the  hours  of  seven  in  the  evening  and  seven 
in  the  morning.  Moreover,  the  mere  "presence  of  such 
child  in  any  estabHshment  shall  be  prima  facie  evidence  of 
its  employment."^"  This  is  an  almost  ideal  law,  the  excep- 
tion of  canning  and  domestic  labor  being  necessitated  by 
expediency.  The  prohibition  of  night  work  and  the  final 
administrative  provision  merit  special  attention.  Minors 
above  sixteen  are  not  specially  legislated  for  in  Maryland 
and  are  included  in  the  legislation  for  adults. 

The  maximum  legal  extent  of  employment  for  women  in 
Maryland  is  ten  hours  in  any  one  day  and  sixty  hours  in  a 
week.-"  This  law  was  enacted  in  1912  after  a  bitter  strug- 
gle, but,  as  it  stands  now  on  our  statute  book,  Maryland 
ranks  about  on  the  level  with  most  other  States  of  the  coun- 
try in  this  respect.  There  are,  however,  two  exceptions  in 
the  Maryland  act  which  are  interesting.  The  first  exception 
exempts  from  the  operation  of  the  law  females  employed 
in  the  canning  or  preserving  or  preparation  for  canning  or 
preserving  of  perishable  fruits  and  vegetables.  Although 
this  exception  has  been  bitterly  assailed  by  the  reform 
forces  and  although  it  is  illogical  and  perhaps  unsocial,  yet 
it  seems  perfectly  justified  by  expediency.  New  York, 
which  has  enacted  a  ten-hour  law  applying  to  canneries, 
has  found  it  practically  impossible  to  enforce  it,  though  the 
labor  commissioner  has  hopes  of  slow  education  up  to  the 
standard. 2^  Some  sort  of  limitation  of  hours  in  canneries 
is  needed — perhaps  a  graduated  scale  over  several  years 
would  be  feasible — but  no  law  is  better  than  an  unenforced 
and  unenforcible  law.  The  other  exception  allows  twelve 
hours'  work  on  Saturdays  and  six  days  preceding  Christ- 
mas in  retail  mercantile  establishments  outside  the  City  of 
Baltimore,  provided  that  there  are  two  periods  of  rest  on 


i»  Laws  1916,  Ch.  222,  Sec.  22A. 

20  Laws  1912,  Ch.  79,  as  amended  by  Laws  1916,  Ch.  147. 

bee  Report  of  New  York  Commissioner  of  Labor  for   1914, 


249]  THE  TERMS  OF  EMPLOYMENT  IO3 

those  days  and  provided  also  that  the  women  in  these  estab- 
Hshments  work  no  more  than  nine  hours  a  day  during  the 
remainder  of  the  year.  Here  again  the  exception  is  not 
logically  sound,  but  is  dictated  by  administrative  expedi- 
ency.    New  York  has  a  similar  exception. 

There  is  no  prohibition  of  night  work  for  women,  that 
is,  no  hours  between  which  women  are  not  allowed  to  labor ; 
only  instead  of  ten  hours  per  day  being  the  legal  limit  a 
shorter  day  of  eight  hours  is  stipulated.  This  is  a  serious 
omission.  Night  work  practically  deprives  women  of  any 
but  the  most  meager  period  of  rest  on  account  of  the  insist- 
ence of  household  duties  during  the  day  when  the  worker 
is  supposed  to  be  sleeping.  Moreover,  night  work  makes 
the  complete  and  efficient  enforcement  of  the  legal  day  al- 
most impossible,  for  unless  certain  opening  and  closing 
hours  are  fixed,'  an  inspector  cannot  unearth  violations  ex- 
cept by  spending  all  his  time  in  one  factory  checking  up  the 
various  women  as  they  come  in  and  leave.  Both  New  York 
and  Massachusetts  prohibit  night  work  for  women. 

The  limitations  put  upon  the  hours  of  labor  of  men  are 
more  in  the  nature  of  norms  than  absolute  regulations. 
This  is  what  would  be  expected.  Thus  eight  hours  is  the 
legal  day  for  employees  of  the  City  of  Baltimore  and  for 
employees  of  contractors  engaged  in  public  work.^^  There 
is  an  exception  allowing  overtime  for  the  protection  of  life 
and  property,  an  exception  which  can  easily  be  stretched  to 
cover  ordinary  overtime.  Again,  there  is  the  provision  that 
ten  hours  shall  be  the  legal  day  in  cotton  and  woolen  manu- 
factories^^ and  in  mines  in  Alleghany  and  Garrett  counties,^* 
but  any  adult  male  may  contract  to  work  longer.  However, 
for  public  safety,  street  car  employees^-'^  and  train  dispatch- 
ers on  a  railroad  employing  the  block  system^*'  are  limited 
to  twelve  and  eight  hours  a  day,  respectively.     These  laws 

22  Laws  1910,  Ch.  94.     See  also  Laws  1916,  Ch.  134. 

23  Code  191 1,  Art.  100,  Sees.  1-2. 

24  Code  Public  Local  Laws  1888,  Art.  12,  Sec.  165;  Art.  I,  Sec.  194. 

25  Baltimore  City  Charter  1915,  Sees.  793-5. 
2«Code  1911,  Art.  23,  Sec.  323. 


104  THE   LABOR   LAW   OF   MARYLAND  [25O 

are  not  important  in  a  general  estimate  of  labor  conditions. 
The  public-works  law  does  give  some  evidence  of  the 
strength  of  labor  as  a  political  force  and  the  ineffective 
laws  display  a  further  attempt  of  the  legislature,  bootless 
this  time,  to  curry  favor  with  the  workingmen,  but  neither 
are  particularly  instructive  examples  of  State  activity. 

Wages. — When  we  come  to  consider  the  third  kind  of 
legislation  regulating  the  terms  of  employment,  laws  with 
regard  to  the  wages  of  labor,  an  entirely  new  field  is  opened 
to  the  investigator.  There  are,  of  course,  the  enactments 
protecting  the  laborer  against  the  fraud  and  delay  of  the 
employer,  but  what  is  most  interesting  to  the  student  of  leg- 
islation is  the  recent  tendency  of  States  to  set  minimum 
wages  for  various  classes  of  workers.  This  is  a  reversion 
to  the  Middle  Ages  practice  of  setting  a  "  fair  and  just " 
wage  with  the  significant  substitution  of  a  legal  minimum 
for  a  legally  absolute  wage.  The  distinction  certainly  is 
significant,  but  both  the  "fair  and  just"  and  the  minimum 
wage  are  enactments  of  a  very  paternalistic  government. 

Recognizing  "  that  not  only  hours  and  working  conditions 
where  there  is  inequality  of  bargaining,  properly  concern  the 
state,  but  that  the  question  of  wages  also  has  a  direct  con- 
nection with  the  welfare  of  the  worker,  and  therefore  of  the 
public,"  a  score  of  states,  American  and  foreign,  have  en- 
acted minimum  wage  laws.  "Wages,"  it  is  further  stated 
by  this  advocate  of  these  laws,  "  have  a  decided  bearing  on 
the  health  of  the  employees.  The  workers  who  have  suffi- 
cient nourishing  food  and  who  live  under  healthful  condi- 
tions are  more  resistant  to  the  evil  effects  of  working  con- 
ditions. Living  conditions  are  dependent  to  a  very  large 
extent  upon  working  conditions,  and  a  betterment  of  hours 
and  wages  means  a  betterment  of  the  mode  of  living  and 
therefore  of  the  efficiency  of  the  worker.""  The  argument 
is  incontestable  if  health  is  the  standard  according  to  which 
the  state  should  guarantee  every  worker  a  "living  wage," 

"  Report  of  Industrial  Commission  of  Wisconsin  for  Two  Years 
Endmg  June  30,  1914,  p.  58. 


251]  THE   TERMS   OF   EMPLOYMENT  IO5 

the  protests  of  the  capitalists  to  the  contrary  notwithstand- 
ing; but  if  the  goal  of  state  regulation  is  to  establish  equal- 
ity of  bargaining  power,  if  the  aim  of  state  interference  is 
to  remedy  causes,  not  symptoms,  then  minimum  wage  leg- 
islation seems  beyond  the  limits  of  state  activity,  although 
perhaps  a  useful  temporary  expedient.  Maryland  has  no 
minimum  wage  law,  and,  according  to  the  doctrines  which 
are  advocated  in  this  study,  her  stand  is  correct. 

All  of  the  laws,  of  course,  apply  only  to  females  and 
minors,  for  the  same  reasons  that  all  other  laws  relating  to 
the  terms  of  employment  are  restricted  to  them.  Most  of 
the  enactments  are  general  in  their  wording,  leaving  to  ad- 
ministrative boards  the  interpretation  of  the  general  terms. 
"  Every  wage  paid  or  agreed  to  be  paid  by  an  employer  to 
any  female  or  minor  employee  .  .  .  shall  be  not  less  than 
a  living  wage "  except  that  incompetents  may  be  granted 
licenses  to  work  at  lower  rates,  says  the  Wisconsin  law ; 
and  a  " '  living  wage '  shall  mean  compensation  .  .  .  suffi- 
cient to  enable  the  employee  ...  to  maintain  himself  or 
herself "  in  "  reasonable  comfort,  reasonable  well-being, 
decency  and  moral  well-being."^^  To  administer  these  laws 
steps  are  taken  very  similar  to  those  described  in  the  last 
chapter  in  connection  with  the  commission  form  of  labor 
legislation.  Some  kind  of  commission  is  always  given  the 
administration  of  the  law.  If  the  commission  has  any  rea- 
son to  believe  that  the  wages  paid  females  or  minors  in  any 
industry  or  trade  are  unreasonably  low  or  if  any  individ- 
ual or  organization  complains  to  the  commission  that  such 
conditions  exist,  the  commission  will  begin  an  investigation 
into  the  wage  conditions  in  that  industry.  This  preliminary 
investigation  is  usually  ex  parte  and  is  in  the  nature  of  an 
inquest  by  the  grand  jury.  If  the  commission  decides  that 
there  is  reason  to  believe  that  there  is  some  truth  in  these 
suspicions,  it  appoints  a  board  composed  of  employees  and 
employers  with  sometimes  a  representative  of  the  public  to 

28  Wisconsin  Acts  1913,  Ch.  712,  Sec.  1729,  s-i,  (4)  and  (5)  ;  2,  7, 


I06  THE   LABOR   LAW   OF    MARYLAND  [252 

investigate  thoroughly  and  determine  on  a  Hving  wage. 
This  board  usually  has  power  to  summon  and  pay  witnesses 
and  every  one  interested  may  appear.  The  minimum  de- 
cided upon,  either  per  day,  per  week  or  by  the  piece,  ac- 
cording to  the  industry,  is  then  reported  back  to  the  govern- 
ment commission,  before  whom  may  appear  any  complain- 
ants who  are  aggrieved  at  the  board's  findings.  When  the 
legal  minimum  is  finally  proclaimed,  all  employers  in  that 
industry  must  conform  to  the  rulings  of  the  commission. 
In  some  States,  however,  for  example,  Massachusetts,^^  the 
penalty  for  disobedience  is  merely  uncomfortable  publicity. 
If  the  minimum  wage  is  really  well  founded  such  a  sanc- 
tion is  sufficient. 

It  is  obvious  that  under  a  minimum  wage  law  the  em- 
ployer is  not  obliged  to  pay  for  what  he  does  not  receive, 
he  must  only  pay  a  little  more  than  he  has  been  accustomed 
to  pay.  He  is  not  obliged  to  pay  a  piece-worker  so  much 
per  week  no  matter  how  much  she  may  loaf  during  the 
week.  He  is  not  obliged  to  pay  the  unskilled  as  much  as 
the  skilled.  The  delinquent  is  allowed  to  work  for  less  than 
the  competent  and  children  for  less  than  adults.  Most  in- 
dustries will  not  be  affected  by  the  legal  minimum — wages 
there  are  above  it — and  those  affected  are  expected  to  get 
more  work  for  the  higher  wages  through  the  increased  ef- 
ficiency of  the  workers.  The  minimum  wage  laws  have 
been  evolved  to  a  high  degree  of  efficiency  in  their  details. 
Arguments  against  them  must  attack  the  fundamentals,  not 
the  superstructure. 

Of  an  entirely  different  nature  from  the  minimum  wage 
laws  are  those  enactments  regulating  the  wage  agreements 
of  adult  men ;  for  though  these  laws  are  general  and  apply 
to  all  workers,  it  is  because  they  include  men  that  new  leg- 
islative and  constitutional  principles  are  involved.  This 
legislation  is  justified  on  the  ground  that  it  is  aimed  pri- 
marily at  fraud.    The  employer  on  account  of  his  position 

29  Massachusetts  Acts  1912,  Ch.  706,  as  amended  by  Acts  1914, 
Cn.  300. 


253]  THE   TERMS   OF    EMPLOYMENT  10/ 

as  trustee  for  the  earned  but  unpaid  wages  of  his  employ- 
ees is  in  such  a  superior  position  that  he  is  able,  if  he  wishes, 
to  exercise  the  most  fraudulent  compulsion  upon  the  work- 
ers. It  is  at  this  evil  that  this  last  class  of  laws  affecting 
the  terms  of  labor  is  aimed.  An  example,  though  a  rather 
extreme  example,  of  the  protection  afforded  by  the  State 
is  the  law  forbidding  railroad  companies  doing  business 
within  the  State  to  withhold  any  part  of  the  wages  of  its 
employees  for  the  benefit  of  any  relief  association  or  the 
members  thereof.^*'  Most  of  the  laws,  however,  are  aimed 
at  the  insidious  truck  system,  as  it  is  called,  which  has  now 
fortunately  become  practically  extinct  in  the  eastern  sections 
of  the  country. ^^ 

The  truck  system  has  largely  depended  upon  the  fact 
that  nature  is  so  perverse  as  to  establish  her  most  necessary 
metallic  resources  in  out-of-the-way  places.  Mining  com- 
munities have  always  been  on  the  economic  frontier  of  civ- 
ilization. A  not  unusual  occurrence  is  the  springing  up  of 
a  full-sized  town  out  of  an  uncultivated  waste.  In  these 
cases  the  mining  company  is  generally  the  owner  of  the 
town,  the  land,  the  homes  and  the  public  buildings.  If  not 
thus  far  centralized,  at  least  the  source  of  the  food  supply 
is  in  the  hands  of  the  mining  company.  At  first  the  com- 
pany is  performing  a  real  economic  service  in  establishing 
the  company  store,  and  it  is  a  real  benefit  to  the  workers 
to  have  a  steady  source  from  which  to  purchase  their  neces- 
sities instead  of  having  to  rely  on  the  possibility  of  an  itin- 
erant huckster.  This  is  the  good  side  of  the  truck  system ; 
and,  perhaps,  in  the  right  hands,  the  company  store  might 
remain  a  benefit  to  the  laborers,  although  the  monopolistic 
weapons  of  the  shop  are  of  a  really  dangerous  nature.    But 

30  Code  191 1,  Art.  23,  Sec.  315. 

31  Most  of  the  information  about  the  truck  system  has  been  taken 
from  the  Report  of  the  Commissioners  Appointed  to  Inquire  into 
the  Truck  System,  1871.  The  general  features  of  the  system  are  so 
constant  that,  it  is  believed,  nothing  has  been  lost  by  using  an  Eng- 
lish instead  of  an  American  source,  especially  since  the  English 
source  is  generally  available  and  compact. 


I08  THE   LABOR    LAW    OF    MARYLAND  [254 

the  truck  system  is  usually  attended  by  much  more  sinister 
forces. 

The  truck  system  is  usually  sustained  by  the  maintain- 
ance  of  long  intervals  between  pay  days,  although  in  Scot- 
land it  was  found  to  exist  where  the  interval  was  only  two 
weeks.  Now  the  miners  as  a  class  earn  just  about  the  mar- 
ginal subsistence  wages  and  have  very  little  chance  to  be 
provident.  If  the  employee  does  not  begin  his  employment 
under  the  necessity  of  obtaining  credit,  he  has  many  chances 
of  acquiring  this  unenviable  position.  The  company  store 
avails  itself  of  this  opportunity  in  two  ways.  Sometimes 
it  merely  extends  credit  to  the  laborer,  establishing  a  sort 
of  lien  on  his  accruing  wages  and  collecting  this  lien  by  a 
system  of  bookkeeping  in  the  company's  office  or  by  setting 
up  a  collection  office  so  close  to  the  paymaster's  window 
that  escape  from  its  clutches  is  impossible.  Its  credits  are 
therefore  much  safer  than  those  of  any  chance  competitor. 
Sometimes,  where  there  exists  the  system  of  advances 
from  the  company's  coffers  on  the  men's  wages,  the  store 
profits  by  a  kind  of  moral  compulsion  to  spend  this  volun- 
tary advance  in  the  company  store,  although  more  tangible 
constraint  is  not  unknown:  "black  lists  are  often  kept  of 
slopers  [those  who  do  not  spend  the  advances  in  the  com- 
pany store]  ;  threats  of  dismissal  were  repeatedly  proved; 
and  cases  of  actual  dismissal  .  .  .  are  not  rare."^^  More- 
over, even  the  most  provident  among  the  employees  seem 
to  think  it  to  their  advantage  to  deal  at  least  to  some  extent 
at  the  company  store:  it  is  a  natural  impression  for  the 
worker  to  think  that  his  job  is  more  secure  if  he  caters  to 
his  employer.  The  dominance  which  the  employer  can 
secure  over  the  laborer  is  evident,  the  double  profits  which 
he  can  reap  are  enormous.  And,  moreover,  the  laborer 
rarely  gets  fair  play,  for  monopoly  and  the  credit  features 
of  a  company  store  allow  the  owner  to  advance  prices  to  a 


"Report  of  the  Commissioners  Appointed  to  Inquire  into  the 
Truck  System,  1871,  p.  xvi. 


255]  "^"^   TERMS   OF   EMPLOYMENT  IO9 

considerable  extent.  The  truck  system,  indeed,  seems  to 
call  most  urgently  for  state  regulation.'^ 

In  legislating  upon  this  subject  Maryland  has  had  a  check- 
ered experience.  The  coal  fields  in  the  two  western  coun- 
ties of  the  State  furnished  an  ideal  opportunity  for  the 
growth  of  the  company  store ;  and,  though  the  conditions 
and  the  acts  passed  to  meet  those  conditions  are  not  of  prac- 
tical importance  to-day,  yet  because  of  the  number  of  these 
laws  and  because  of  the  decisions  based  upon  them  it  has 
been  thought  worth  while  to  spend  enough  time  on  them  at 
least  to  outline  them.  As  far  back  as  1868  the  legislature 
decreed  that  "  no  railroad  or  mining  corporation  .  .  .  shall 
own,  conduct  or  carry  on  any  store,  or  have  any  interest  in 
any  store."^*  This  law  does  not  seem  to  have  been  very 
effective,  for  two  other  laws,  this  time  local  in  their  effect, 
were  later  enacted.  By  these  every  corporation  engaged  in 
mining  or  manufacturing  or  operating  a  railroad  in  Alle- 
ghany and  Garrett  counties  was  compelled  to  pay  the  wages 
of  its  employees  in  legal  tender  of  the  United  States  f^  and, 
in  Alleghany  County,  it  is  further  provided  that  "  no  such 
corporation  .  .  .  shall  issue  any  script  or  metallic  or  paper 
checks  in  payment  of  the  sums  due  such  employees,  nor 
shall  such  employees  make  any  contract  with  their  employ- 
ers by  which  such  employees  shall  be  compelled  to  purchase 
their  supplies,  merchandise  or  goods  from  any  private  or 
company  stores  owned  and  operated  by  said  employers ;  nor 
shall  .  .  .  [the  employers]  exercise  any  influence  whatever 
...  to  compel  their  employees  to  deal  with  any  particular 
merchant  or  storekeepers."^* 

This  last  amendment  makes  this  law  about  as  inclusive 
and  adequate  as  it  is  possible  to  make  a  law  regulating  such 
a  multiform  evil.    It  is  the  direct  outgrowth  of  a  Maryland 

8^  A  regulation  and  prohibition  of  the  truck  system  has  been  held 
constitutional  in  Knoxville  Iron  Co.  v.  Harbison,  183  U.  S.  13. 
3*  Laws  1868,  Ch.  471,  Sec.  217;  Code  1911,  Art.  23,  Sec.  311. 

35  Code  Public  Local  Laws  1888,  Art.  1,  Sec.  185;  Laws  1892, 
Ch.  445. 

36  Amendment  added  by  Laws  1900,  Ch.  453. 


no  THE   LABOR   LAW   OF    MARYLAND  [256 

case"  construing  an  allied  act  and  of  a  Supreme  Court 
decision.^^  To  understand  this  law  a  little  history  must  be 
indulged  in.  The  local  law  for  Alleghany  County  as  first 
passed  was  declared  constitutional  as  a  justified  exercise  of 
the  police  power  of  the  State  in  Shaffer  v.  Union  Mining 
Co.  f^  but  it  was  held  in  this  case  that  an  assignment  of 
wages  to  merchants  who  were  tenants  of  the  mining  com- 
pany was  not  included  within  the  prohibition  of  the  act. 
This  decision  much  weakened  the  law,  for  the  truck  sys- 
tem has  been  found  just  as  noxious  when  the  store  is  run 
by  tenants  of  the  company  as  when  run  by  the  company 
itself.  The  law  in  fact  proved  inadequate  and  there  was 
passed  a  bill  rendering  it  imlawful  for  any  officer  or  direc- 
tor of  a  mining  or  railroad  corporation  to  have  any  interest 
in  any  general  store  in  Alleghany  County.*"  This  act  was 
aimed  at  what  has  recently  become  well  known  as  interlock- 
ing directorates,  but  it  was  almost  immediately  declared 
unconstitutional  as  interfering  with  the  equal  protection  of 
the  laws.*^  "  Though  it  was  perfectly  competent,"  say  the 
court,  "  for  the  legislature  to  prevent  railroad  and  mining 
corporations  from  engaging  in  the  business  of  bartering  or 
selling  goods  .  .  .  ;  yet  it  was  not  within  the  power  of  the 
General  Assembly  to  deny  to  particular  individuals  who 
happened  to  be  officers  of  those  corporations,  and  merely 
because  they  were  such  officers  the  right  which  every  other 
citizen  of  the  country  .  .  .  possessed  to  sell  goods."  And 
further,  "  the  owners  of  a  mine  have  no  other  control  over 
the  employee  *  than  that  which  may  result  from  employing 
him,  etc. ;  and  every  other  employer  of  labor  has  precisely 
the  same  control  over  those  who  obtain  or  wish  to  obtain 
employment  with  him.' "*2  In  this  case  the  court  clearly 
refused  to  take  judicial  cognizance  of  the  truck  system  and 


3^  Luman  v.  Kitchens,  90  Md.  14;  46  L.  R.  A.  393. 

38  Knoxville  Iron  Co.  v.  Harbison :  see  above. 

»^  55  Md.  74. 

*o  Laws  1898,  Ch.  493. 

*^  Luman  v.  Hitchens ;  see  above. 

*2  Quoting  from  Frorer  v.  People,  141  111.  171 ;  16  L.  R.  A.  492. 


257]  ^^^   TERMS   OF   EMPLOYMENT  III 

especially  of  the  truck  system  as  it  flourished  in  Alleghany 
County,  Maryland.  The  case  was  decided  on  purely  legal 
grounds ;  and,  being  one  of  those  cases  in  which  constitu- 
tionality was  peculiarly  a  question  of  fact,  it  is  submitted 
that  the  court  was  in  error.  This  case,  however,  is  not  so 
reactionary  and  destructive  as  a  case  which  followed  it,  that 
of  Luman  v.  Hitchens.  This  case  led  to  the  amendment  of 
the  earlier  law  and  the  amendment,  as  has  been  intimated, 
is  really  more  efficient  than  the  unconstitutional  act. 

Thus  far  only  those  laws  directly  attacking  the  truck 
system  have  been  considered ;  but  since  the  truck  system 
depends  for  its  maintenance  upon  long  intervals  between 
pay  days,  acts  regulating  the  time  of  pay  will  be  practically 
as  efficacious  as  the  out-and-out  company  store  laws. 
Maryland  has  three  such  acts  on  her  statute  book,  though 
it  is  probable  that  only  one  is  really  constitutional.  This  is 
a  law  contained  in  the  corporation  article  of  the  code  de- 
creeing that  "  every  association  or  corporation  doing  busi- 
ness in  the  State  of  Maryland  employing  wage  earners  .  .  . 
in  the  business  of  mining,  manufacturing,  operating  a  steam 
or  electric  railroad,  street  railway,  telegraph,  telephone  or 
express  company  shall  make  payments  in  lawful  money  of 
the  United  States  semi-monthly  to  said  employees."*^  This 
law  seems  to  include  all  businesses  mentioned  in  the  previ- 
ous law  pertaining  to  corporations  engaged  in  mining  and 
shipping  coal  in  Alleghany  County,**  so  that  this  earlier  law 
is  entirely  superseded.  A  later  act  was  passed,  however, 
applying  the  same  terms  to  "  all  corporations  and  individual 
mine-owners  .  .  .  engaged  in  mining  coal  or  fire  clay  in 
Garrett  County.""  This  addition  of  "  individual  mine- 
owners  "  was  the  result  of  the  decision  of  Luman  v. 
Hitchens,*^  which  was  interpreted  as  based  on  the  singling 
out  of  corporations  for  stricter  regulations.  In  State  v. 
Potomac  Coal  Company,*^  however,  the  court  on  the  ground 

"Code  1911,  Art.  23,  Sec.  123. 
"Laws  1896,  Ch.  133. 
*^  Laws  1910,  Ch.  211. 
*^  Cited  above. 
*'ii6  Md.  380. 


112  THE   LABOR   LAW   OF    MARYLAND  [258 

of  the  earlier  case  declared  the  later  act  unconstitutional  as 
a  violation  of  the  "equal  protection  of  the  laws"  clause 
because  the  law  was  confined  to  the  mining  industry  in  the 
one  county.  The  court  again  based  its  decision  on  purely 
legal  grounds  and  seems  to  have  narrowed  the  police  power 
to  an  unreasonable  extent.  Though  the  court's  argument 
seems  discouragingly  restrictive,  and  not  specifically  based 
on  facts,  the  facts  do  nevertheless  to  a  great  degree  uphold 
it,  for  the  truck  system  in  191 1  was  not  nearly  so  insidious 
as  it  was  when  the  court  refused  to  recognize  it  in  1899.  It 
is,  however,  lucky  that  the  adverse  decision  of  the  court 
came  after  the  truck  system  had  virtually  disappeared,  for 
it  would  have  been  practically  impossible  to  legislate  against 
it  if  the  industries  in  which  it  was  prevalent  could  not  have 
been  reached  by  special  legislation. 

Any  discussion  of  state  regulation  of  the  terms  of  em- 
ployment should  include  at  least  a  mention  of  the  tendency 
towards  state  aided  pensions  for  sickness,  old  age,  unem- 
ployment and  the  like.  This  movement  has  attained  great 
prominence  in  many  foreign  countries,  and  recently  Great 
Britain  has  followed  the  lead  of  the  more  radical  Domin- 
ions. One  such  scheme  of  state  aid  in  the  unemployment 
insurance  of  labor  unions  will  be  discussed  in  the  last  chap- 
ter as  a  means  whereby  the  state  might  obtain  control  of 
union  affairs.  As  such,  as  a  governmental  device,  these 
pensions  are  perhaps  justified;  but,  as  purely  social  legisla- 
tion, they  are  quite  beyond  the  police  power  of  the  state 
as  it  is  conceived  in  this  study,  whether  we  define  the  police 
power  from  a  legal  or  a  legislative  point  of  view. 


CHAPTER  VI 
Some  Miscellaneous  Laws 

There  will  be  considered  in  this  chapter  a  number  of  laws 
which  are  only  incidentally  labor  laws,  but  which  play  an 
important  part  in  the  legal  and  social  welfare  of  Maryland. 
These  will  be  treated  under  four  heads :  ( i )  license  laws ; 
(2)  laws  governing  attachments  and  liens  for  wages — laws 
of  legal  practice  and  procedure  primarily;  (3)  child  wel- 
fare laws;  and  (4)  State  employment  laws. 

Licenses. — There  is  in  Maryland  the  beginning  of  a  li- 
cense system.  In  so  far  as  it  is  intended  for  a  comprehen- 
sive system  of  licensing  occupations  in  order  to  make  the 
State  a  sponsor  for  the  proficiency  of  its  working  people, 
the  Maryland  license  laws  are  really  only  a  beginning,  but 
compared  with  the  license  laws  of  other  States,  they  seem 
fairly  extensive.  Licenses  are  required  of  barbers,  plumb- 
ers and  chauffeurs  throughout  the  State,  and  of  electricians, 
horseshoers,  moving  picture  operators,  stationary  engineers 
and  master  stevedores  in  Baltimore  City.  Practically  the 
only  important  occupation  licensed  in  other  States  which  is 
not  licensed  in  Maryland  is  mining;  but  withal  the  Mary- 
land miners  are  an  efficient  and  intelligent  class. 

Licenses  are  required  by  the  State  for  two  reasons. 
Some  license  laws,  as,  for  instance,  those  controlling  ped- 
dlers and  real  estate  dealers,  are  enacted  purely  for  revenue 
purposes.  They  indirectly  serve  as  police  measures,  but 
their  primary  purpose  is  to  secure  revenue.^  The  other 
class  of  license  laws,  beginning  with  those  regulating  the 
practice  of  medicine  and  law  and  extending  down  to  horse- 
shoers, are  enacted  primarily  as  police  measures  to  protect 
the  public  from  quacks  and  inefficient  workmen.     To  this 

1  See  Coates  v.  Locust  Point  Co.,  102  Md.  297. 
8  113 


114  THE   LABOR  LAW   OF   MARYLAND  [260 

class  belong  all  the  laws  affecting  the  laborer  except  per- 
haps the  master  stevedore  law,^  which  as  it  now  stands  in 
its  emasculated  form  is  hard  to  understand.  As  first  en- 
acted, it  required  both  a  license  fee  and  a  bond  to  secure 
the  payment  of  wages  to  the  journeymen  stevedores.  The 
Court  of  Appeals,  however,  declared  the  bonding  provision 
unconstitutional,  but  did  not  question  the  licensing  section ;' 
yet  it  is  hard  to  see  why,  if  the  State  can  protect  those  work- 
ers who  are  hired  by  a  master  stevedore  against  fraud  and 
insolvency  by  a  twenty-five  dollar  license  fee,  it  cannot  more 
adequately  protect  them  by  a  thousand  dollar  bond.  The 
regard  of  the  courts  for  the  historical  activities  of  the  State 
and  their  aversion  towards  new  modes  of  State  activity  is 
perhaps  the  only  explanation. 

The  other  laws,*  if  considered  together,  suggest  an  inter- 
esting hypothesis.  Except  for  the  chauffeurs,  an  exception 
which  is  easily  explained,  all  the  occupations  licensed  in 
Maryland  are  organized  into  substantial  unions.  Is  the 
State,  perhaps  unconsciously,  rendering  a  most  valuable  aid 
to  the  organizing  of  these  occupations?  That  the  unions 
are  strongly  in  favor  of  these  laws  and  that  they  put  forth 
every  effort  of  which  they  are  capable  to  secure  them  is  an 
unconcealed  fact;  that  their  efforts  are  of  much  avail  and 
that  the  results  are  beneficial  is  more  debatable.  That  these 
laws  are  of  some  use  seems  indisputable.  A  typical  instance 
is  furnished  by  the  operation  of  the  laws  of  the  Middle 
Western  States  licensing  miners.  When  a  strike  is  the  or- 
der of  the  day,  the  men  in  the  mines  stop  work  and  the  mine 
owners  are  unable  to  fill  their  places  because  of  the  lack  of 
licensed  men  outside  the  ranks  of  the  strikers.    This  is  true, 

2  Baltimore  City  Charter  1915,  Sec.  700A. 

a  Steeken  y.  State,  88  Md.  708. 

*The  various  laws  are  codified  as  follows:  Barbers,  Code  191 1, 
Art.  43,  Sees.  209-222;  Chauffers,  Code  191 1,  Art.  56,  Sec.  139;  Elec- 
tricians, Baltimore  City  Charter  1915,  Sec.  663,  m-q;  Horse-shoers, 
Baltimore  City  Charter  1915,  Sec.  515,  a-f ;  Moving  Picture  Opera- 
tors, Laws  1912,  Ch.  814;  Plumbers,  Code  191 1,  Art.  43,  Sees.  223- 
229,  with  exceptions  contained  in  Laws  1912,  Chs.  764,  845;  Station- 
ary Lngineers,  Baltimore  City  Code  1906,  Sec.  427,  as  amended  by 
Laws  1910,  Ch.  662,  and  Sec.  428. 


26 1 ]  SOME   MISCELLANEOUS   LAWS  II5 

of  course,  only  if  employment  at  the  time  of  the  strike  is  at 
a  high  ebb ;  but  employment  usually  is  at  a  high  ebb  when  a 
strike  is  essayed,  for  this  weapon  is  only  efficient  in  pros- 
perous times.  The  a  priori  argument  advanced  as  to  the 
benefit  to  the  unions  of  licensing  laws  seems  again  to  be 
borne  out  by  the  fact  that  most  licensed  occupations  are 
organized,  though,  here  too,  the  argument  is  not  conclusive 
because  of  the  probable  functional  relation  of  organization 
and  license  laws.  The  argument  based  on  the  unorganized 
condition  of  such  licensed  occupations  as  trained  nurses  and 
chauffeurs,  which  is  often  used  to  offset  that  conclusion  that 
licensing  and  unionization  are  closely  related,  seems  hardly 
tenable  because  of  the  inherent  nature  of  these  occupations. 
That  licensing  is  not  a  sufficiently  strong  unionizing  device 
to  unionize  unorganizable  occupations  is  freely  conceded, 
but  it  is  nevertheless  strongly  maintained  that  it  is  a  stimu- 
lus towards  organization.  The  desirability  of  unionization 
by  means  of  a  licensing  system  is  doubtful.  It  certainly 
tends  to  make  the  union  policy  one  of  restriction  rather 
than  of  progress ;  and  if  its  effect  is  to  cause  the  American 
unions  to  pattern  their  policy  after  that  of  the  British 
unions,  it  is  open  to  strong  disapprobation. 

The  administration  of  these  laws  is  not  of  much  impor- 
tance in  this  study  and  as  it  is  practically  the  same  in  all 
the  laws,  one  explanation  will  suffice.  Except  for  the  chauf- 
feurs, where  the  administration  is  quite  naturally  in  the 
hands  of  the  automobile  commissioner,  all  of  the  laws  are 
enforced  by  a  board  generally  of  men  practiced  in  the  regu- 
lated occupation  and  generally  appointed  by  the  governor. 
The  meetings  of  this  board  are  in  most  cases  left  to  the  dis- 
cretion of  the  board  itself,  though  sometimes  a  minimum  is 
fixed  and  sometimes,  even  in  general  laws,  a  certain  number 
of  meetings  must  be  held  in  Baltimore.  The  members  of 
the  board  are  usually  paid  a  per  diem  and  travelling  ex- 
penses to  be  obtained  from  the  fees  of  the  applicants  for 
licenses.  The  board  is  allowed  full  discretion  in  setting  the 
examination  where  an  examination  is  required,  and  this  dis- 


Il6  THE   LABOR   LAW    OF    MARYLAND  [262 

cretion  seems  well  placed  because  of  the  practical  training 
of  the  members  of  the  board.  The  applicant  must  qualify- 
only  once  before  the  granting  body,  but  in  the  case  of 
plumbers,  moving  picture  operators  and  stationary  engi- 
neers the  license  is  good  for  only  one  year  and  the  worker 
is  of  right  entitled  to  a  renewal  upon  the  payment  of  a  re- 
newal fee.  There  has  been  some  litigation  as  to  the  inter- 
pretation and  application  of  these  laws,^  but  since  these  laws 
are  not  of  great  importance  in  the  sum  total  of  labor  legis- 
lation of  the  State,  the  litigation  needs  no  discussion. 

Attachments  and  Liens. — There  must  next  be  considered 
certain  laws  which,  if  not  in  all  cases  a  protection  of  the 
laborer,  aim  to  further  his  welfare  in  legal  proceedings. 
Maryland  does  not  hold  any  peculiar  position  in  regard  to 
these  laws,  neither  above  nor  below  the  average,  for  it  has 
been  generally  agreed  that  they  are  just  and  necessary  and, 
in  most  States,  are  of  the  same  general  nature.  They  in- 
clude mechanics'  lien  laws,  laws  preferring  wages  in  assign- 
ments and  similar  laws.  These  laws  are  justified  upon  the 
ground  that  the  workingman,  since  he  must  always  work  a 
certain  length  of  time  before  he  receives  his  wages,  is  al- 
ways to  a  degree  involuntarily  in  the  debt  of  his  employer. 
The  employer  really  stands  more  in  the  nature  of  a  trustee 
to  the  workingman  than  of  a  debtor,  for  the  laborer  hardly 
looks  upon  his  contract  as  one  in  which  he  extends  credit 
to  the  employer.  It  is  right,  therefore,  that  the  laborer 
should  have  greater  security  for  his  wages  than  the  ordi- 
nary debtor  for  his  debt.  The  truck  laws,  which  have  al- 
ready been  considered,  are  a  related  branch  of  legislation, 
which  seems  proper  irrespective  of  the  conditions  of  the 
laborers  as  a  class. 

In  pursuance  of  this  policy,  the  Maryland  legislature 
early  began  to  accumulate  these  laws  on  the  statute  books. 
Thus  there  are  mechanics'  liens  extending  to  buildings,  ma- 


»  Concerning  the  plumber  law,  see  Davidson  v.  State,  77  Md.  388. 
Md     88   '"^^'■P''^*^*-'*°"  °^  ^^^  ^^'■ber  law,   see  State  v.  Tag,   100 


263]  SOME    MISCELLANEOUS    LAWS  II7 

chines,  wharves,  bridges,  boats"  and  even  wells  in  Garrett 
County,''  giving  to  those  engaged  in  the  construction  of  these 
structures  priority  in  the  security  for  their  wages  over  all 
except  in  the  case  of  vessels,  prior  mortgages  and  sales.  So 
also,  in  insolvency  assignments,  wages  due  for  not  more 
than  three  months  are  preferred  to  all  claims  except  prior 
recorded  liens  on  the  property  f  and  in  an  execution  against 
property  in  Alleghany  and  Garrett  counties  sufficient  of  this 
property  is  exempted  to  pay  all  wage  claims.''  In  a  differ- 
ent spirit  but  again  from  public  policy  toward  all  and  not 
toward  a  class  is  the  exemption  of  all  tools  and  mechanical 
instruments  from  execution  on  a  judgment. ^^  Still  differ- 
ent and  really  quite  without  the  scope  of  labor  legislation 
are  those  laws  regulating  strictly  the  attachment"  and  as- 
signment^' of  wages.  These  last  are  merely  mentioned 
because  the  words  "  wages  "  or  "  laborer  "  occurs  in  them 
and,  therefore,  necessarily  the  workingman  is  affected  by 
them ;  they  are  not  social  legislation  to  so  great  an  extent 
as  are  those,  for  example,  preferring  the  laborer  in  insol- 
vency. 

Child  Welfare. — A  third  group  of  laws  deal  with  chil- 
dren, apprenticeship  and  education.  Their  philosophy  is 
the  same  as  that  of  the  laws  considered  in  the  preceding 
chapter,  which  the  State  has  enacted  in  conservation  of  child 
life.  Their  subject  matter,  however,  is  not  the  relation  of 
employer  and  employee,  but  the  policy  of  the  State  toward 
its  children  and,  hence,  is  not  included  in  the  terms  of 
employment. 

Historically,  the  apprentice  law  came  first.  When  it  is 
remembered  that  the  first  Maryland  enactment  of  this  kind 
was  as  early  as  1715,^*  it  is  hardly  necessary  to  explain 

*Code  191 1,  Art.  63,  Sees.  1-52. 

■^  Laws  1894,  Ch.  608. 

^  Code  1911,  Art.  47,  Sec.  15. 

»  Code  Public  Local  Laws  1888,  Art,  1,  Sec.  193 ;  Art.  12,  Sec.  149. 

10  Code  1911,  Art.  83,  Sec.  10. 

1^  Code  191 1,  Art.  9,  Sees.  33-34. 

12  Code  1911,  Art.  8,  Sees.  11-17. 

13  See  Laws  1715,  Ch.  19. 


Il8  THE  LABOR  LAW   OF   MARYLAND  [264 

that  the  State  has  not  seen  fit  to  regulate  the  terms  of  ap- 
prenticeship, which  it  has  properly  left  to  the  individual  and 
especially  the  union,  but  has  merely  laid  down  the  funda- 
mental principles  upon  which  the  contract  or  status  of  ap- 
prenticeship is  based.  The  law  as  it  now  stands,"  for  in- 
stance, allows  the  father,  but  not  the  mother,^^  to  bind  out 
a  minor  child  until  the  age  of  twenty-one  in  the  case  of 
males  and  eighteen  in  that  of  females.  The  Orphans'  Court 
may  also  bind  out  for  the  same  term  any  orphan  whose  in- 
heritance is  not  sufficient  to  support  him,  or  any  other  child 
whose  parents  fail  or  are  unable  to  support  him.  Of  course 
the  prohibitions  against  child  labor  are  binding  upon  the 
Orphans'  Court. 

Then  there  is  the  elaborate  school  attendance  law"  of 
1912  which  was  passed  in  connection  with  the  child  labor 
law  of  that  year  and  which  requires  every  child  not  men- 
tally deficient  between  the  ages  of  eight  and  fourteen  to 
attend  school  throughout  the  entire  session,  and  also  every 
child  between  the  ages  of  fourteen  and  sixteen  unless  he 
has  been  granted  an  employment  certificate.  An  efficient 
and  complete  administration  has  been  provided  in  this  act 
and  in  these  respects  it  is  perfectly  adequate.  The  useful- 
ness of  the  act,  however,  depends  upon  the  general  useful- 
ness of  the  school  system,  and  although  the  Maryland  school 
system  is  perhaps  above  the  average,  it  still  falls  short  of 
the  highest  standards.  Without  going  beyond  the  scope  of 
this  study  mention  may  be  made  of  the  schools  of  mining 
which  have  been  authorized  in  Alleghany  County  for  the 
large  mining  population  of  that  county.^^ 

The  latest  activity  of  the  State  in  the  field  of  child  wel- 
fare is  the  limited  mothers'  pension  law  of  1916."  Here 
again  we  have  a  stretching  of  the  function  of  the  State 
until  it  verges  rather  dangerously  upon  socialism.    The  law, 

i*Code  191 1,  Art.  6. 

13  Baker  v.  Lauterback,  68  Md.  69. 

1^  Laws  1912,  Ch.  173. 

1^  Code  Public  Local  Laws  1888,  Art.  i,  Sees.  218-225. 

1*  Laws  1916,  Ch.  670. 


265]  SOME    MISCELLANEOUS   LAWS  II9 

however,  though  properly  classed  as  social  legislation,  is 
hardly  in  the  rubric  of  labor  legislation,  and  an  intensive 
examination  of  its  philosophy  would  be  superfluous.  "  Any 
mother  of  a  child  or  children  under  the  age  of  fourteen 
years,  whose  husband  is  dead,  and  who  is  unable  to  support 
it  or  them  and  maintain  her  home"  may  apply  for  relief 
to  the  county  commissioners  in  the  counties  or  to  the  special 
Board  for  Mothers'  Rehef  for  Baltimore  City.  If,  after  in- 
vestigation, it  is  found  "that  unless  relief  is  granted,  the 
mother  will  be  unable  to  support  and  educate  her  children, 
and  that  they  may  become  a  public  charge,"  she  is  referred 
to  the  Juvenile  Court  which  may  order  to  be  paid  her  twelve 
dollars  per  month  for  the  oldest  child,  ten  dollars  for  the 
next,  and  six  dollars  for  each  additional  child  up  to  forty 
dollars  a  month.  The  administrative  agency  is  to  keep  in 
touch  with  its  dependents,  to  visit  them  at  least  once  every 
two  months,  and  to  see  that  the  relief  is  properly  applied 
for  the  welfare  of  the  children. 

State  Employment. — The  last  series  of  laws  which  fall 
into  a  clearly  defined  group  are  those  laws  in  which  the 
State  regulates  the  terms  of  employment  of  its  own  em- 
ployees or  those  of  its  subdivisions.  In  the  United  States 
this  kind  of  legislation  is  generally  political  in  its  nature, 
it  is  generally  passed  primarily  as  a  bid  for  the  labor  vote 
and  only  secondarily  as  a  social  measure ;  but  on  the  Conti- 
nent, in  Germany  particularly,  this  species  of  legislation 
plays  an  important  part  in  the  administrative  organization 
of  the  country. 

In  the  first  place,  it  has  been  decreed  that  preference 
shall  be  given  to  voters  in  filling  the  jobs  on  the  public  work 
of  Baltimore  City."  A  probable  reason  for  this  law  is  to 
enable  the  party  in  control  of  the  city  government  to  use 
the  city's  money  for  electioneering  purposes.  The  other 
laws  regulating  this  subject  are  not  so  brazen,  yet  their 
political  effect  is  as  certain.  "  For  all  laborers,  workmen 
or  mechanics  who  may  be  employed  by  or  on  behalf  of  the 

^3  Baltimore  City  Code  1906,  Art.  35,  Sec.  6. 


I20  THE   LABOR   LAW   OF    MARYLAND  [266 

Mayor  and  City  Council  of  Baltimore,"  eight  hours  shall 
constitute  a  day's  work  except  in  emergencies.  Moreover, 
"  the  rate  of  per  diem  wages  paid  to  laborers,  workmen  or 
mechanics  employed  directly  by  the  Mayor,  etc.,  shall  not 
be  less  than  two  dollars  per  diem,"  and  where  the  work  is 
contracted  out  "  not  less  than  the  current  rate  of  per  diem 
wages  in  the  locality  where  the  work  is  performed  shall  be 
paid  "  f°  and  these  wages  shall  be  paid  weekly. ^^  This  leg- 
islation has  always  been  upheld  as  constitutional,  but  it 
hardly  seems  that  the  State  is  performing  a  proper  legisla- 
tive function  in  enacting  these  laws.  It  is  quite  true 
that  the  State  has  a  right  to  stipulate  in  its  contracts  any 
terms  that  it  wishes,  but  efficiency  demands  that  an  admin- 
istrative head  have  some  discretion  in  respect  to  the  terms 
of  employment  which  he  contracts  for.  The  laborer  would 
hardly  suffer  from  the  exercise  of  administrative  discre- 
tion and  its  resulting  elasticity.  Yet  it  must  be  admitted 
that  practically  every  State  of  the  Union  has  fek  the  neces- 
sity of  enacting  legislation  of  this  type. 

Massachusetts  State  employment  legislation  represents  a 
more  extreme  type.  Superficially  it  may  seem  a  startling 
step  towards  socialism,  but  on  closer  examination  it  seems 
to  have  been  an  attempt  to  secure  efficient  administration. 
It  is  aimed  at  attaining  that  thing,  so  harsh-sounding  to  the 
democratic  ear,  yet  seeming  so  necessary  in  a  representative 
government,  a  bureaucracy.  In  the  first  place,  a  civil  service 
examination  must  be  passed  before  one  is  eligible  for  a  state 
job."  Then  to  secure  some  sort  of  permanency  in  state 
employment  and  to  make  this  employment  more  attractive, 
a  state-aided  old-age  pension  scheme  is  devised  for  state, 
county  and  city  employees.^^  It  is  a  well-known  fact  that 
Massachusetts  has  a  very  efficient  government.  How  far 
Its  efficiency  is  due  to  the  measures  just  mentioned  is  diffi- 

20  Laws  1910,  Ch.  94,  Sec.  2. 
"  Baltimore  City  Code  1906,  Sec.  47. 
"  Massachusetts  Revised  Laws  1902,  Ch.  19,  Sees.  12-13. 
Mass.  Laws  1910,  Ch.  559;  Laws  191 1,  Ch.  532. 


267]  SOME    MISCELLANEOUS    LAWS  121 

cult  to  estimate ;  but  in  view  of  European  experience  it 
seems  that  something  hke  the  Massachusetts  plan  is  neces- 
sary to  invigorate  American  administration. 

Laws  which  defy  classification  are :  the  Sunday  rest  law,^* 
the  law  establishing  Labor  Day,^°  a  law  requiring  every 
employer  to  allow  all  of  his  employees  sufficient  time  for 
voting  at  all  elections,^®  and  a  law  of  191 2  requiring  physi- 
cians to  report  all  cases  of  occupational  sickness  which  they 
are  called  upon  to  attend.-^  The  last  named  law  as  it  now 
stands  is  designed  merely  for  statistical  purposes ;  but  since 
it  may  lead  to  greater  things  in  the  way  of  the  prevention 
of  occupational  diseases  it  is  properly  treated  as  a  labor  en- 
actment. Finally,  in  pursuance  of  the  special  care  which 
the  law  has  always  had  for  seamen,  there  is  on  the  Mary- 
land books  a  law  protecting  them  from  the  solicitations  of 
any  kind  of  sailors'  employment  agencies.^* 

24  Code  1914,  Art.  27,  Sec.  435. 

25  Baltimore  City  Code  1906,  Art.  15,  Sec.  2. 

26  Code  1911,  Art.  33,  Sec.  91. 

27  Laws  1912,  Ch,  165,  Sec.  5A. 

28  Code  191 1,  Art.  84,  Sees.  1-7. 


CHAPTER  VII 
The  Administrative  System 

The  lawyer  usually  feels  that  administration  and  law  are 
things  apart  and  a  legal  treatise  generally  contents  itself 
with  a  consideration  of  the  substantive  law,  leaving  admin- 
istration to  the  care  of  the  social  reformer.  With  the  ex- 
ception of  the  law  of  the  labor  union,  however,  the  present 
study  has  been  confined  to  the  analysis  of  the  works  of 
social  reformers.  Moreover,  we  have  been  dealing  with  the 
science  of  legislation  quite  as  much  as  with  the  science  of 
law,  and  legislation  generally  includes  administration.  The 
common  law  and  most  codifying  legislation  is  remedial, 
compensatory;  labor  legislation  is  restrictive,  prohibitive. 
Labor  legislation,  though  it  is  often  attacked  as  class  legis- 
lation in  its  narrow  and  obnoxious  sense,  is  in  reality  en- 
acted for  the  benefit  of  the  community  as  a  whole;  its  vio- 
lation is  more  in  the  nature  of  a  crime  against  the  state 
than  an  injury  to  the  individual.  In  the  community,  there- 
fore, lies  the  responsibility  of  guarding  against  the  viola- 
tion of  this  legislation,  against  the  slightest  deviation  from 
its  prescriptions.  In  the  community,  not  in  the  individual, 
must  rest  the  initiative  of  bringing  this  law  into  operation. 

An  adequate  labor  law  is  accordingly  dependent  upon 
efficient  administrative  provisions.  As  a  chain  is  no  stronger 
than  its  weakest  link,  neither  is  labor  legislation  more  effi- 
cacious than  its  administrative  system.  Considering  Mary- 
land legislation  from  the  standpoint  of  administrative  effi- 
ciency one  cannot  grant  it  high  rank.  Even  the  greatest 
optimist  would  find  himself  somewhat  doubtful,  to  say  the 
least,  of  the  sagacity  of  the  sovereign  people  of  Maryland 
after  a  talk  with  those  charged  with  the  administration  of 
the  labor  law.    In  order  to  give  this  subject  adequate  treat- 

122 


269]  THE  ADMINISTRATIVE  SYSTEM  1 23 

ment  in  this  study,  it  has  seemed  best  to  give  first  a  com- 
plete description  of  the  administration  as  it  now  exists  and 
has  existed,  refraining  as  far  as  possible  from  any  critical 
comment.  Having  tried  to  understand  the  existing  system, 
we  shall  subject  it  to  criticism  and  then  attempt  to  outline 
an  adequate  scheme  of  administration. 

Before  going  any  further,  it  must  be  understood,  the 
title  of  this  chapter  to  the  contrary  notwithstanding,  that 
there  is  no  administrative  system  for  carrying  out  the  labor 
laws  of  Maryland.  Administration  there  is,  but  system — 
hardly.  This  criticism,  of  course,  has  been  partly  met  by  the 
legislation  of  1916;  but  this  reform — for  reform  it  was — 
hardly  necessitates  any  qualification  of  the  statement  that 
Maryland,  like  most  other  American  States,  is  happy-go- 
lucky  when  it  comes  to  legislating.  A  preconceived  system 
is  rarely,  if  ever,  thought  out.  An  evil  arises ;  it  is  legis- 
lated against;  and,  if  administration  must  be  provided  for, 
a  special  official  or  board  is  designated.  That  is  what  has 
happened  in  the  labor  legislation.  In  spite  of  the  recent 
centralizing  amendment,  there  are  still  eight  separate  and 
distinct  administrative  agencies  for  Maryland  labor  law, 
only  one  of  which,  the  State  Board  of  Labor  and  Statistics, 
is  charged  with  the  administration  of  more  than  one  law. 
Besides  this  board,  there  are  the  State  Board  of  Health, 
the  city  inspector  of  buildings,  the  city  health  commissioner, 
the  Industrial  Accident  Commission — all  real  administrative 
devices,  and  the  police  marshals,  the  constable  of  Carroll 
County,  and  the  city  collector  of  water  rents,  who  perform 
administrative  functions  in  connection  with  the  labor  law. 

State  Board  of  Labor  and  Statistics. — By  far  the  most 
important  administrative  agency  is  the  State  Board  of  Labor 
and  Statistics.  This,  by  the  act  of  1916,^  is  the  Maryland 
equivalent  of  a  labor  department,  though  still  a  rather  cir- 
cumscribed equivalent.  It  is  the  successor  to  and  an  im- 
provement upon  the  old  Bureau  of  Statistics  and  Informa- 

1  Laws  1916,  Ch.  406. 


124  THE   LABOR   LAW   OF    MARYLAND  [2/0 

tion,  which,  as  originally  established  in  1884,-  was  hardly 
more  than  what  its  name  implies,  a  bureau  for  the  dissemi- 
nation of  information,  but  which  by  gradual  accretion  and 
the  accompanying  process  of  selection  was  burdened  more 
and  more  with  the  enforcement  of  the  labor  law,  until  within 
the  last  two  or  three  years  it  had  come  to  confine  itself  en- 
tirely to  labor  problems.  The  new  state  board  is,  of  course, 
entirely  devoted  to  labor  problems.  The  old  bureau  was 
the  only  centralizing  influence  in  the  Maryland  labor  law 
and  the  endeavor  of  the  legislation  of  1916  was  to  increase 
this  centralization. 

The  State  Board  of  Labor  and  Statistics  is  composed  of 
three  commissioners  appointed  by  the  governor  for  a  two- 
year  term.  One  of  the  commissioners  is  designated  chair- 
man by  the  governor  at  a  salary  of  twenty-five  hundred  dol- 
lars and  the  other  two  are  merely  advisory  members  of  the 
board.  The  chairman  is  the  executive  head  of  the  board 
and  most  of  the  activities  of  the  department  are  directed  by 
him  personally.  The  board  as  a  whole  meets  only  once 
a  month  to  determine  the  policy  of  the  department.  Its 
business,  however,  is,  it  would  seem,  more  to  ratify  the  acts 
of  the  chairman  than  to  lay  down  any  positive  policy,  for 
the  chairman  with  his  more  intimate  knowledge  of  the  af- 
fairs of  the  department  should  be  able  to  dictate  rather 
eflfectively  the  administrative  program  of  the  board.  This 
is  especially  so  for  the  reason  that  the  duties  of  the  board 
are  not  administrative  in  the  broader  sense,  as  described  in 
the  fourth  chapter,  but  are  almost  entirely  executive.  The 
Maryland  legislature  followed  the  plans  of  New  York  and 
Massachusetts,  but  did  not  give  the  commissioners  the  ad- 
ministrative powers  which  they  have  in  those  States.  The 
board  is  a  good  beginning,  but  as  the  law  now  stands,  the 
two  advisory  members  seem  somewhat  superfluous. 

"The  State  Board  of  Labor  and  Statistics  is  authorized 
and  empowered  to  appoint  .  .  .  such  deputies,  inspectors, 
assistants,  and  employees  of  every  kind  as  may  be  necessary 

2  Laws  1884,  Ch.  211 ;  Code  1911,  Art.  89,  Sec.  i. 


2/1]  THE   ADMINISTRATIVE    SYSTEM  125 

for  the  performance  of  the  duties  now  or  hereafter  imposed 
upon  it,"  provided,  however,  that  all  appointments  shall  be 
subject  to  the  approval  of  the  governor.^  The  board  has 
now*  sixteen  employees,  including  two  medical  examiners, 
two  boiler  inspectors,  two  mining  inspectors,  its  regular  in- 
spectors, officers  to  issue  child  labor  permits,  clerks  and 
stenographers.  These  positions  are  all  frankly  regarded 
as  political  plums.  The  only  qualification  needed  by  an  ap- 
plicant is  sufficient  political  "  pull  "  in  his  or  her  ward.  Not 
only  that,  but  since  the  board  cannot  hire  the  cheapest  ser- 
vice without  the  approval  of  the  governor,  it  results  that 
when  once  employed,  it  is  impossible  to  discharge  for  any 
reason  an  inspector  upon  whom  the  party  in  power  depends 
to  carry  his  ward.  This  is  absolutely  true  of  the  men  em- 
ployed in  the  department.  The  women,  it  is  said,  are  easier 
to  remove  on  account  of  inefficiency  because  they  do  not 
swing  so  many  votes.  Moreover,  I  have  been  told,  though 
my  informant  is  a  woman,  the  then  assistant-chief  of  the 
old  bureau,  that  as  a  whole  the  women  are  more  likely  to 
be  efficient  than  the  men ;  and  certainly  they  take  their  work 
more  seriously.  Yet  it  cannot  be  proposed  that  all  the  in- 
spectors should  be  women,  for  men  are  required  for  some 
jobs.  About  half  the  employees  of  the  board  are  women. 
The  duties  of  the  board  are  many  and  varied.  Inherited 
from  the  old  bureau  is  its  duty  to  collect  and  disseminate 
information.  The  board  is  "  to  collect  statistics  and  ex- 
amine into  the  condition  of  labor  in  this  State,  with  especial 
reference  to  wages,  and  the  causes  of  strikes  and  disagree- 
ments between  employers  and  employees."^  In  the  law  are 
set  forth  many  other  matters  of  economic  interest  concern- 
ing which  the  board  is  ordered  to  investigate  and  publish 
information,  but  of  late  the  board  has  confined  itself  rather 
closely  to  labor  conditions.  In  pursuance  of  the  duty  im- 
posed upon  it  by  these  sections  of  the  law,  the  board  pub- 
lishes annually  a  lengthy  report  to  the  governor. 

3  Laws  1916,  Ch.  406,  Sec.  i,  Par.  3. 

*July,  1916. 

5  Code  191 1,  Art.  89,  Sec.  2;  Laws  1888,  Ch.  173. 


126  THE   LABOR   LAW   OF   MARYLAND  [2/2 

The  board  is  also  empowered  "  to  organize,  establish  and 
conduct  free  employment  agencies,  in  such  parts  of  the 
State  as  it  may  deem  advisable,  for  the  free  use  of  the  citi- 
zens of  the  State. "^  This  is  a  great  improvement  over  the 
old  law,  which  provided  for  only  one  agency,  but  it  is  still 
deficient  in  that  the  legislature  does  not  seem  to  realize  the 
seriousness  of  the  problem  of  unemployment.  It  is  now 
usually  held  that  a  system  of  free  employment  offices  which 
aims  to  increase  the  fluidity  of  the  labor  market  is  one  of  the 
most  efficient  remedies  of  unemployment.'^  As  a  conse- 
quence of  this,  the  State  should  expend  every  means  to  fur- 
nish the  most  adequate  system.  This  Maryland  has  hardly 
done.  The  board  has  established  agencies  in  Baltimore, 
Cumberland,  Hagerstown  and  on  the  Eastern  Shore,  but 
these  agencies  are  not  closely  enough  coordinated.  In  con- 
nection with  the  establishment  of  free  employment  agen- 
cies, the  board  should  have  the  licensing  and  supervision 
of  private  employment  agencies;  but  this  power  is  vested  in 
the  city  collector  of  water  rents.* 

The  state  board,  it  will  be  remembered,  has  also  in  its 
charge  the  administration  of  the  law  providing  for  the  set- 
tlement of  labor  disputes.^ 

The  chief  duty  of  the  board,  however,  is  the  inspection 
of  factories  and  workshops.  There  are  three  inspection 
laws  which  the  board  enforces,  the  factory  inspection  and 
industrial  registration  law,  the  child  labor  law,  and  the 
women's  ten-hour  law.  For  this  inspection  the  board  has 
appointed  five  inspectors  in  Baltimore  City,  one,  with  the 
possibility  of  an  increase  to  two  in  Western  Maryland,  and 
one  on  the  Eastern  Shore,  each  at  a  salary  of  about  one 
thousand  dollars.    For  the  purposes  of  this  inspection,  Bal- 

«  Code  191 1,  Art.  89,  Sec.  2,  Par.  7,  as  amended  by  Laws  1916,  Ch. 
406,  Sec.  2. 

J  For  a  full  treatment  of  this  subject,  see  an  article  on  state  em- 
ployment agencies  by  Wm.  M.  Leiserson  in  29  Political  Science 
Quarterly,  p.  28. 

8  Ordinances  of  Mayor  and  City  Council  of  Baltimore,  1909-10, 
No.  433.  "^"^ 

»  See  Chapter  II. 


273]  THE   ADMINISTRATIVE   SYSTEM  12/ 

timore  is  divided  into  five  districts,  each  of  which  is  as- 
signed to  an  inspector  who  is  responsible  for  the  inspection 
and  conditions  in  his  district.  How  this  responsibiHty  is 
enforced  has  not  yet  been  worked  out  and  seems  to  be  in 
a  rather  vague  state,  but  a  system  of  checking  up  could  be 
easily  instituted.  But  this  localization  of  the  work  of  an 
inspector  can  lead  to  valuable  results  if  the  inspector  by 
frequent  visits  can  get  into  friendly  relations  with  the  em- 
ployer and  persuade  rather  than  force  him  to  better  the 
conditions  of  his  plant.  It  is  doubtful  whether  this  con- 
summation can  be  attained  under  the  present  law,  but  the 
beginning  is  worth  while.  In  the  first  place,  the  laws  as 
they  now  exist  lay  down  exact  rules  and  leave  nothing  to 
the  discretion  of  the  board  or  inspector,  and  the  instruc- 
tions given  to  the  inspectors  accentuate  the  routine  charac- 
ter of  their  work.  In  the  second  place,  the  inspector  has 
to  inspect  in  pursuance  of  three  separate  acts  and  it  seems 
that  the  districts  will  be  too  large  for  the  intensive  inspec- 
tion that  this  plan  requires.  It  is  doubtful  in  fact  whether 
five  inspectors  are  sufficient  for  the  minimum  efficiency  of 
the  laws.  Finally,  the  character  of  the  inspectors  who  are 
political  appointees  of  doubtful  efficiency  is  such  as  to  make 
decidedly  improbable  the  attainment  of  the  best  results  and 
to  render  doubtful  the  careful  inspection  which  the  laws 
require. 

Turning  now  to  the  first  of  these  laws  which  the  board 
enforces,  the  factory  inspection  and  industrial  registration 
law,^"  we  shall  examine  the  administration  of  it  in  detail 
before  considering  the  other  two  laws.  It  has  already  been 
said  that  the  inspection  facilities  for  the  enforcement  of  this 
law  are  deficient  both  in  quantity  and  quality ;  but  even 
with  four  or  five  inspections  per  shop  a  year  by  trained  in- 
spectors, which  would  furnish  an  adequate  inspection,  it  is 
doubtful  whether  this  act  could  reach  the  pinnacle  of  effi- 
ciency. As  far  as  obtaining  information  and  statistics  from 
the  employers  and  workers  covered  by  this  act,  the  board 

i**  Laws  1914,  Ch.  779. 


128  THE   LABOR   LAW   OF   MARYLAND  [274 

has  full  and  discretionary  authority,  and  the  reports  in  this 
respect  are  valuable,  notwithstanding  their  incompleteness 
due  to  the  shiftless  methods  of  the  inspectors.  When,  how- 
ever, the  actual  enforcement  of  the  sanitary  and  safety  pro- 
visions of  the  law  is  considered  it  is  obvious  that  the  di- 
vision of  authority  in  the  enforcement  of  this  act  makes 
completeness  impossible. 

When  the  inspectors  are  sent  out  on  their  tours  of  inves- 
tigation, their  duty  is  to  visit  and  inspect  thoroughly  every 
factory,  workshop  or  tenement  shop  in  the  territory  to  which 
they  have  been  assigned.  Upon  visiting  the  work  place  the 
inspector  notes  the  toilet  conditions,  the  presence  of  fire- 
escapes  and  the  location  of  staircases,  the  existence  of  any 
communicable  disease,  and,  if  the  shop  savors  to  the  least 
degree  of  tenement  or  loft  shop,  the  inspector  further  meas- 
ures the  cubic  capacity  of  the  room.  This  is  the  routine 
whether  the  inspection  be  within  the  regular  investigation 
or  whether  it  be  undertaken  upon  the  application  of  a  home- 
worker  for  a  license  for  his  shop.  The  standards  of  the 
inspection  are  the  same  in  both  cases,  for  the  license,  as 
will  be  remembered,  is  revocable  at  any  time  by  the  board. 
After  completing  the  investigating  for  the  day,  the  inspector 
returns  to  the  office  and  notes  the  results  of  his  inspection 
on  the  forms  provided  for  filing.  That  is  as  far  as  the  in- 
spector goes. 

The  report  as  thus  filed  is  subject  to  the  authority  of 
three  separate  administrative  agencies.  The  board  has  the 
power  in  itself  to  enforce  only  the  provision  limiting  the 
number  of  persons  employed  in  any  room  to  one  to  each 
five  hundred  cubic  feet  of  air  space.  If  the  shop  inspected 
seems  to  lack  adequate  fire-escapes  required  by  law,  the 
report  is  referred  to  the  city  inspector  of  buildings.  In  hrm 
is  vested  the  duty  of  visiting  and  inspecting  all  manufac- 
tories employing  twenty-five  or  more  persons  and  of  ruling 
on  the  adequacy  of  fire-escapes."    Neither  of  these  duties 

"  Baltimore  City  Charter  1915,  Sees.  80-81 ;  Ordinances  of  Balti- 
more, 1908-09,  No.  155,  Sec.  3,  Pars.  6-7;  Laws  1908,  Ch.  495. 


2/5]  THE   ADMINISTRATIVE   SYSTEM  1 29 

is  very  strictly  enforced.  The  inspection  he  leaves  entirely 
in  the  hands  of  the  State  Board  of  Labor  and  Statistics,  and 
perhaps  it  is  better  so,  although  the  city  department  has,  in 
fact,  a  number  of  inspectors.  The  provisions  for  fire- 
escapes  are  interpreted  so  loosely  that,  as  has  been  said, 
they  are  considered  fulfilled  if  the  house  in  which  the  shop 
is  located  has  two  staircases  of  any  kind  in  different  parts 
of  the  building  or  one  central  staircase.  The  result  of  this 
division  of  authority,  as  is  always  the  case,  is  that  the  law 
is  practically  nullified.  The  state  board  is  afraid,  and  in 
truth  is  hardly  empowered,  to  make  more  stringent  regula- 
tions than  those  of  the  city  building  inspector,  so  that  here 
there  is  no  compelling  authority.  The  building  inspector, 
on  the  other  hand,  does  not  consider  himself  delegated  with 
any  authority  to  protect  the  safety  of  the  employees.  As 
the  secretary  of  the  department  once  said:  "Oh,  no;  we 
don't  make  any  trouble.  We  are  a  kind  of  complaint  de- 
partment. The  fire  department  and  the  labor  department 
send  us  their  complaints  and  we  try  to  straighten  them 
out."  The  "straightening"  is  hardly  in  the  direction  of 
strictness. 

As  for  the  sanitary  conditions  of  the  shop,  or  tenement, 
a  different  course  of  proceeding  is  established.  In  the  first 
place,  it  is  provided  by  statute  that  before  any  license  for  a 
tenement  is  issued  the  records  of  the  local  health  depart- 
ment shall  be  investigated,  and  if  they  show  "  the  presence 
of  any  infectious,  contagious  or  communicable  disease,  or 
the  existence  of  any  unsanitary  conditions,"  the  license  may 
be  refused  without  any  inspection  of  the  room  or  apart- 
ment. Usually,  however,  the  room  or  shop  is  investigated, 
and  then  the  report  referred  to  the  local  health  department. 
If  the  health  department  finds  from  its  own  records  and  the 
report  of  the  inspector  that  the  place  is  sanitary,  a  license  is 
always  issued  by  the  board,  for  in  this  case  as  in  others  the 
board  refuses  to  adopt  any  higher  standard  than  that  set 
by  the  more  technical  local  department  and  here  again  the 
standard  is  low.  If  the  health  department,  on  the  other 
9 


1^0  THE  LABOR  LAW   OF   MARYLAND  [2/6 

hand,  finds  from  an  examination  of  the  records  and  report 
that  the  place  is  below  the  minimum,  the  license  is  with- 
held until  these  defects  are  remedied,  and  even  then  it  is 
not  issued  until  the  approval  of  the  health  department  is 
obtained. 

It  is  obvious  from  what  has  been  said  that  however  good 
this  law  may  be  in  its  substantive  provisions  and  however 
complete  may  be  the  records  obtained  under  this  act,  in  final 
results,  because  of  the  great  division  of  administrative  re- 
sponsibility and  the  inefficiency  of  the  personnel  to  which 
is  entrusted  the  enforcement,  the  law  fails  to  realize  a  large 
amount  of  its  potential  value. 

Next  in  importance  to  the  factory  inspection  law  is  the 
recent  child  labor  law.^^  As  has  been  said  in  a  previous 
chapter,  this  is  a  most  valuable  act  and  in  draftsmanship 
one  of  the  best  on  the  statute  book.  The  act  goes  into  great 
detail  in  establishing  administrative  provisions  for  its  en- 
forcement and  an  exhaustive  study  might  profitably  be 
made  of  these  administrative  details ;  but  it  will  serve  our 
purpose  in  the  general  estimate  of  the  Maryland  system  of 
labor  law  administration  merely  to  point  out  the  salient 
features  of  these  administrative  provisions. 

After  the  inspections  under  the  factory  law,  the  next  duty 
of  the  inspectors  is  to  investigate  the  ages  and  conditions  of 
employment  of  children.  The  inspection  under  this  law 
should  be  more  efficient  than  under  the  law  which  we  have 
just  been  considering,  for  no  skill  is  required  and  no  tech- 
nical training  necessary.  Even  a  political  appointee  should 
be  able  to  prepare  a  complete  report.  The  task  of  the  in- 
spector is  merely  to  see  that  the  employer  complies  with 
certain  provisions,  such  as  the  keeping  of  a  registry,  to  ex- 
amine the  certificates  of  any  children  who  are  below  six- 
teen, to  ascertain  the  true  age  of  any  child  who  appears 
younger  than  sixteen,  the  employer  being  compelled  to  fur- 
nish within  fifteen  days  satisfactory  evidence  that  a  child 
apparently  under  sixteen  is  in  fact  over  sixteen  or  to  cease 

12  Laws  1912,  Ch.  731,  as  amended  in  1916. 


277]  THE   ADMINISTRATIVE   SYSTEM  I3I 

to  employ  that  child ;"  and,  finally,  to  tabulate  the  number 
of  children  employed  in  the  various  occupations  in  the  fac- 
tory. If  any  child  is  employed  in  an  occupation  below  the 
age  which  the  law  provides,  the  inspector  will  notify  and 
warn  the  employer,  but  usually  prosecutions  and  the  pre- 
liminaries are  managed  from  the  home  office.  One  of  the 
child  labor  inspectors  under  the  old  bureau  had  in  practice 
been  found  to  be  more  efficient  than  the  others  and  she  had 
been  assigned  to  investigational  work  similar  to  that  per- 
formed by  the  British  lady  inspectors.  One  section  of  the 
law^*  prohibits  the  employment  of  children  under  sixteen  in 
certain  specified  employments  or  "  in  any  other  occupation 
dangerous  to  life  and  limb,  or  injurious  to  the  health  or 
morals  of  such  child."  Instead  of  leaving  the  interpreta- 
tion of  this  section  to  the  discretion  of  the  individual  in- 
spector, the  bureau  had  assigned  this  more  efficient  inspector 
to  the  work  of  ascertaining  what  are  dangerous  occupations 
and  was  to  issue  administrative  orders  on  the  basis  of  this 
investigation.  This  was  really  a  notable  step  in  advance 
and  fuller  mention  will  be  made  of  it  later.  It  is  to  be 
hoped  that  it  will  be  developed  further  by  the  state  board. 
The  task  of  issuing  employment  certificates  and  street 
trade  badges  is  a  somewhat  heavy  one  and  when  the  act 
first  went  into  force  the  offices  of  the  old  bureau  were 
gwamped  with  applicants.  Detailed  provisions  are  made 
in  the  act  as  to  the  requirements  which  must  be  fulfilled 
before  these  permits  are  issued  and  granting  them  is  not  an 
indiscriminate,  clerical  operation.  In  Baltimore  City  the 
hoard  is  empowered  to  issue  these  employment  certificates, 
and  in  the  counties  the  county  superintendent  of  schools  has 
concurrent  jurisdiction  with  it.  In  the  offices  of  the  state 
board  there  is  a  special  inspector  at  a  higher  salary,  whose 
only  work  is  to  issue  these  certificates  and  to  keep  a  file  of 
the  duplicates.  The  two  physicians,  also,  earn  their  pay 
merely  by  examining  applicants  for  certificates.     The  re- 

13  Ibid.,  Sec.  19. 
"  Ibid.,  Sec.  8. 


132  THE   LABOR   LAW   OF    MARYLAND  [2/8 

ports  of  these  examinations  promise  to  become  valuable 
sociological  statistics.  In  reality,  the  board  issues  the  great 
majority  of  the  employment  certificates  for  city  and  coun- 
ties ;  but  when  the  school  superintendent  issues  a  certificate 
in  one  of  the  counties  he  is  empowered  to  employ  a  physi- 
cian at  a  stipulated  fee  to  make  the  examination  and  is  re- 
quired to  transmit  all  records  to  the  board.  One  of  the 
child  labor  inspectors  is  detailed  to  take  charge  of  the  issu- 
ing of  badges  to  boys  under  sixteen  engaged  in  street  trade. 

Both  in  administrative  provisions  and  administrative 
practice  this  is  one  of  the  most  satisfactory  and  efficient 
laws  in  the  Maryland  labor  code.  Nevertheless,  there  is  one 
defect,  perhaps  practically  unavoidable.  This  law  and  the 
compulsory  school  attendance  law  dovetail  exactly  and,  in 
fact,  the  enforcement  of  these  laws  is  indiscriminately  con- 
fided to  attendance  officers  and  inspectors  from  the  State 
Board  of  Labor  and  Statistics.  The  attendance  officers  and 
the  inspectors  are  responsible  and  report  to  different  chiefs 
who  are  themselves  in  no  way  related  and  have  no  official 
correspondence.  It  seems  that  here  a  valuable  opportunity 
to  check  up  results  has  been  lost. 

The  other  inspection  law  enforced  by  the  state  board,  the 
women's  ten-hour  law,^^  has  no  interesting  administrative 
features.  The  inspector  merely  notices  that  the  substan- 
tive provisions  of  the  law,  such  as  the  posting  of  schedules, 
are  obeyed.  This  law,  for  political  reasons,  was  formerly 
enforced  by  a  special  bureau  composed  only  of  women. 
One  of  the  most  obvious  reforms  of  the  1916  amendment 
was  the  placing  of  the  administration  of  this  law  under  the 
supervision  of  the  same  agency  which  enforced  the  child 
labor  law. 

Two  other  inspection  laws  were  brought  under  the  in- 
direct control  of  the  State  Board  of  Labor  and  Statistics 
by  the  1916  legislature.  The  board  with  the  approval  of  the 
governor  appoints  two  boiler  inspectors  for  Baltimore  City" 

II  D^i^^  ^^^^'  ^^-  79.  as  amended  in  1914  and  1916. 
1016  Ch     """^  ^'^^  Charter  1915,  Sees.  572-589,  as  amended  by  Laws 


2/9]  THE  ADMINISTRATIVE   SYSTEM  1 33 

and  a  mine  inspector  for  Alleghany  and  one  for  Garrett 
County.^''  Aside  from  this  power  of  appointment  and  the 
fact  that  the  board  supplies  the  boiler  inspectors  with  office 
rooms  and  receives  annual  reports  from  these  officers,  there 
is  no  coordination  between  these  separate  agencies.  The 
legislature  attempted  to  introduce  a  centralized  system,  but 
merely  centralized  the  structure,  not  the  system.  The  boiler 
inspection  and  the  mine  inspection  laws  have  not  been 
changed  by  the  amalgamation.  The  inspectors  under  these 
laws  are  also  political  appointees,  but  the  mine  inspectors 
must  "possess  a  competent  and  practical  knowledge  of  the 
different  systems  of  mining  and  [ventilation]  .  .  .  and  of 
the  nature  and  constituent  parts  of  the  various  gases  found 
in  coal  mines  .  .  .  and  shall  have  had  five  years'  practical 
experience  as  a  miner."  In  his  reports  he  is  to  make  rec- 
ommendations for  future  legislation  for  safety  in  mining.^' 

Finally,  every  physician  attending  a  patient  suffering 
from  any  occupational  disease  must  make  a  full  report  to 
the  state  board  which  publishes  the  results  in  its  annual 
report.^^  Though  a  minor  provision,  it  has  possibilities  and 
already  the  reports  make  interesting  reading. 

State  Board  of  Health. — Related  to  the  work  of  the  board 
of  labor  is  the  work  of  the  State  Board  of  Health  in  enforc- 
ing the  Sanitary  Inspection  Law.^"  This  law  applies  only 
to  shops  and  factories  manufacturing  or  handling  food 
stuffs  and,  as  the  bureau  has  nothing  to  do  with  these  shops 
except  so  far  as  they  may  be  located  in  tenements  or  lofts, 
there  is  not  much  overlapping  in  inspection.  But,  logically, 
why  should  not  this  law  be  placed  under  the  charge  of  the 
State  Board  of  Labor  and  Statistics,  perhaps  assisted  by  the 
State  Board  of  Health  ? 

The  Sanitary  Inspection  Law,  as  will  be  remembered, 
lays  down  numerous  and  definite  specifications  for  the  clean- 

^''  Code  Public  Local  Laws  1888,  Art  i,  Sec.  196,  and  Art.  12,  Sec. 
150,  as  amended  by  Laws  1902,  Ch.  124,  and  Laws  1916,  Ch.  410. 

18  Laws  1916,  Ch.  410. 

19  Laws  1912,  Ch.  165,  Sec.  5A. 

20  Laws  1914,  Ch.  678. 


134  THE   LABOR   LAW   OF    MARYLAND  [28O 

liness  and  sanitary  condition  of  factories  or  shops  handling 
food  stuffs  and  more  stringent  rules  for  canneries.  It  is  a 
most  carefully  and  scientifically  drafted  law.  It  may  safely 
be  said  to  be  in  the  highest  rank  among  what  may  be  called 
regulative  acts,  a  class  of  laws  which,  however,  is  giving 
■way  to  general  laws  with  provisions  for  administrative  or- 
ders. The  Maryland  law  does  indeed  include  a  provision 
for  these  orders ;  but,  not  being  absolutely  essential  to  the 
working  of  the  act,  none  have  been  issued.  The  inspectors 
of  the  State  Board  of  Health  have,  then,  for  their  guidance 
in  the  administration  of  the  law  the  specifications  included 
within  the  body  of  the  law  and  nothing  else.  True,  these 
specifications  are  rather  searching  and  well-defined,  but  it 
is  impossible  that  even  the  legislature  could  have  foreseen 
all  the  contingencies  in  which  the  law  might  be  called  into 
play.  Accordingly,  with  respect  to  details  too  minute  to 
refer  to  the  Board  of  Health,  numerous  disputes  as  to  the 
interpretation  and  application  of  the  act  must  arise.  The 
inspector  is  thrown  back  upon  his  own  discretion  and  the 
law  is  strictly  or  loosely  enforced  according  to  the  tempera- 
ment of  the  inspector.  Now  it  has  not  been  possible  for 
me  to  interview  the  employers  affected  by  this  law,  but  from 
the  class  of  inspectors  who  are  employed  by  the  Board  of 
Health  it  would  seem  a  fair  deduction  that  the  act  is  admin- 
istered leniently  rather  than  strictly. 

The  full  control  over  the  administration  of  this  act  has 
been  placed  by  the  Board  of  Health  practically  in  the  hands 
of  one  member  of  that  board,  who  has  also  charge  of  the 
enforcement  of  the  Pure  Food  and  Drugs  Act.  He  com- 
bines the  work  of  enforcing  the  two  laws  and  uses  the  same 
inspectoral  force  for  both.  There  are  six  inspectors 
scattered  over  the  State.  Owing  to  the  fact  that  their 
work  as  pure  food  insepctors  necessitates  keeping  their 
identity  unknown  so  far  as  possible,  it  is  the  endeavor  of 
the  supervisor  to  have  the  same  man  visit  a  factory  at  as 
infrequent  intervals  as  possible.  The  inspections  are  fre- 
quent, about  four  a  year,  but  the  continual  switching  around 


28 1]  THE  ADMINISTRATIVE  SYSTEM  I  35 

of  inspectors  offsets  to  a  great  degree  the  advantages  to  be 
gained  from  frequent  inspections,  among  the  most  impor- 
tant of  which  are  the  famiHarity  of  the  inspector  with  the 
plant  and  his  personal  amicable  relations  with  the  owner. 
It  may  be  said  here  that  the  Board  of  Health  is  noted  as 
being  of  the  various  State  departments  one  of  those  least 
contaminated  by  politics,  and  the  inspectors  may  be  efficient 
so  far  as  the  Pure  Food  Law  is  concerned,  in  connection 
with  which  all  the  technical  work  is  done  at  headquarters. 
An  inspector,  however,  who  has  no  technical  training,  whose 
salary  ranges  in  the  neighborhood  of  one  thousand  dollars, 
for  whom  there  is  little  or  no  hope  of  promotion,  and  who 
has  no  assurances  of  permanency  of  employment,  is  not 
one  to  whom  should  be  entrusted  the  enforcement  of  pro- 
visions calling  for  the  cleanliness  "  which  the  nature  of  the 
employment  will  permit "  or  the  detection  of  communicable 
diseases.  The  act  suffers  both  in  the  nature  of  the  admin- 
istration and  in  the  class  of  inspectors  to  whom  its  enforce- 
ment is  entrusted. 

Minor  Administrative  Agencies. — The  Industrial  Acci- 
dent Commission,  which  is  charged  with  the  administra- 
tion of  the  workmen's  compensation  law,  may  be  dismissed 
with  the  statement  that  it  is  wholly  separated  from  all 
other  labor  law  agencies  in  the  State.  Likewise  separated 
from  any  other  agency  is  the  Baltimore  City  Commissioner 
of  Health  in  his  performance  of  the  duty  imposed  upon 
him  to  inspect  all  mercantile  or  manufacturing  establish- 
ments in  Baltimore  City  where  females  are  employed  to 
gee  that  seats  are  provided  for  these  employees-^ — a  need- 
less overlapping  upon  the  Women's  Ten  Hour  Law  inspec- 
tion. Similarly  isolated  and  overlapping,  the  constable  of 
Carroll  County  inspects  the  ventilation  in  stone  grinding 
mills^ — certainly  an  incongruous  agency  for  the  adminis- 
tration of  labor  laws.     Hardly  less  so,  however,  are  the 

21  Ordinances  of  Baltimore,  1910-1911,  No.  547. 

22  Laws  1894,  Ch.  202. 


136  THE   LABOR   LAW    OF    MARYLAND  [282 

marshals  of  police  or  the  police  commissioners  in  their  in- 
spection of  scaffoldings  which  are  reported  to  be  unsafe." 

Suggestions  for  Reforms. — All  the  administrative  agen- 
cies charged  with  the  enforcement  of  the  Maryland  labor 
law  have  now  been  described  or  mentioned.  On  the  whole 
there  is  little  less  than  absolute  chaos.  One  department  is 
fairly  well  defined,  but,  on  the  whole,  no  more  cohesion  or 
system  is  present  than  in  a  pan  of  peas.  And  yet  the  situa- 
tion is  not  altogether  hopeless.  Other  States  have  evolved 
an  orderly  administration  out  of  equally  or  more  chaotic 
labor  laws  upon  a  critical  expose  of  that  condition.  It  is 
hoped  that  this  criticism  by  merely  reporting  the  results  in 
other  States  may  lead  to  some  such  result  in  Maryland. 

The  first  and  cheapest  reform  needed  is  some  method  of 
taking  the  personnel  of  the  various  departments  out  of  poli- 
tics. Much  has  already  been  said  of  the  disastrous  results 
of  the  present  methods  of  appointments  to  all  positions  in 
the  administration,  so  that  only  one  instance  further  will 
be  cited.  In  191 5  the  elections  for  governor  occurred  on 
the  second  of  November  and  the  term  of  office  began  on 
January  i,  1916.  A  Democratic  governor  was  elected  to 
succeed  a  Republican.  A  week  after  the  November  elec- 
tion I  visited  the  Bureau  of  Statistics,  as  it  then  was,  to  in- 
terview the  assistant-chief.  It  was  only  half-past  two  in 
the  afternoon,  yet  there  was  not  a  single  man  in  the  office. 
All  the  inspectors  were  Republicans  and  knew  or  thought 
that  they  would  lose  their  positions  at  the  first  of  the  year, 
so  they  had  practically  refused  to  do  any  work  at  all. 

It  is  perfectly  obvious  that  some  sort  of  civil  service  ap- 
pointment is  the  prime  essential  to  an  efficient  administra- 
tion of  the  labor  law.  Whether  this  shall  be  by  competi- 
tive, technical  examination  or  by  qualifying,  general  exami- 
nation with  appointment  vested  in  the  head  of  the  labor 
department  is  a  question  somewhat  outside  the  scope  of  this 
study.  The  former  has  the  advantage  of  securing  techni- 
cally efficient  inspectors  substantially  freed  from  the  taint 

23  Code  191 1,  Art.  48,  Sees.  75-79. 


283]  THE  ADMINISTRATIVE   SYSTEM  1 3/ 

of  politics ;  the  latter  the  advantage  of  securing  all  around 
efficient  inspectors  who  are  also  more  subservient  to  and 
often  also  more  agreeable  to  the  chiefs.  The  competitive 
examination  is  perhaps  more  suited  to  the  present  status  of 
labor  departments  where  there  is  a  subdivision  of  functions 
and  where  the  inspectors  are  selected  for  one  purpose  alone 
without  much  hope  of  promotion.  The  qualifying  exami- 
nation is  more  suited  to  the  centralized  system  which  has 
been  adopted  wherever  reform  has  been  introduced,  where 
the  inspector  has  various  duties  to  perform  in  an  inspectoral 
way,  where  he  must  be  acceptable  in  appearance  and  man- 
ner to  the  employers,  and  where,  moreover,  as  will  soon  be 
seen,  the  appointment  is  guarded  from  politics  by  the  na- 
ture of  the  head  of  the  department. 

In  addition  to  a  civil  service  appointment,  some  means 
must  be  provided  to  attract  the  desirable  classes  to  the  posi- 
tions in  the  service.  We  can  never  in  America  hope  to  in- 
spire in  our  citizens  the  regard  for  government  service 
which  is  present  in  the  German,  or  perhaps  even  in  the 
English,  heart ;  but  there  is  no  reason  why  the  government 
service  should  not  be  lifted  to  a  higher  plane  than  that 
which  it  now  occupies.  Salaries  in  the  United  States 
compare  most  favorably  with  those  abroad,  so  that  there  is 
not  much  room  for  improvement  in  this  direction  without 
involving  great  expense.  Improvement  is  needed  in  re- 
spect to  the  security  of  tenure,  the  opportunities  for  ad- 
vancement, and  the  provisions  for  the  disabilities  of  age  or 
accident.  We  have  referred  in  the  preceding  chapter 
apropos  of  the  Massachusetts  state  pension  law  to  the  value 
of  a  pension  system  for  state  employees  as  an  incentive  to 
efficient  administration ;  but  nowhere  in  the  United  States 
does  there  seem  to  have  been  a  proper  appreciation  of  per- 
manency and  promotion  as  essentials  in  government  employ- 
ment. It  is  useless  to  press  a  priori  arguments.  In  the 
light  of  the  wonderful  success  of  the  English  system  of  gov- 
ernment in  general,  one  may  demand,  in  the  administration 


1^8  THE   LABOR   LAW   OF    MARYLAND  [284 

of  the  labor  law,  a  graded  system  of  inspectors  with  pro- 
motion for  eflficiency  and  permanency  of  service. 

Nevertheless,  such  a  statement  of  the  principles  of  ad- 
ministration calls  for  some  qualification.  There  must  be 
considered  the  inevitable  conflict  of  an  independent,  bureau- 
cratic administration  and  a  politically  responsible  adminis- 
tration. Abstract  questions  would  lead  us  too  far  afield; 
so,  concretely,  should  the  heads  of  the  various  departments 
be  selected  absolutely  by  the  governor  or  should  there  be 
promotion  from  the  ranks  ?  As  the  labor  administration  is 
now  constituted,  it  would  seem  perfectly  feasible  to  vest 
the  selection  of  the  entire  force  in  a  civil  service  board.  The 
only  reason  for  the  political  appointment  of  the  various 
chiefs  would  be  to  secure  uniformity  of  policy  and  politi- 
cal responsibility  and  neither  of  these  is  necessary  in  the 
Maryland  system:  the  only  policy  should  be  an  absolutely 
strict  adherence  to  the  terms  of  the  law,  and  removal  of 
the  chiefs  for  cause  by  the  governor  provides  all  the  respon- 
sibility which  could  reasonably  be  expected.  It  is  perhaps 
unfortunate  that  all  of  these  administrative  agencies  are 
directly  subordinated  to  the  governor  and  that  there  is  no 
intermediate  state  officer  responsible  for  them  to  the  gover- 
nor, but  this  deficiency  does  not  invalidate  the  proposal 
that  as  now  constituted  the  labor  administration  should  be 
entirely  divorced  from  politics.  Under  the  scheme  of  ad- 
ministration which  is  now  to  be  described,  however,  the 
present  heads  of  departments  would  be  merely  chiefs  of 
bureaus  who  could  be  efficiently  chosen  by  promotion  from 
the  ranks,  whereas  the  head  of  the  unified  department  of 
labor,  be  it  an  individual  or  a  commission,  would  be  selected 
by  and  responsible  to  the  governor.  Not  only  administra- 
tively but  also  politically  the  centralized  administrative  sys- 
tem is  the  more  desirable. 

What  has  been  termed  the  centralized  administrative 
system  has  only  recently  made  its  appearance  in  American 
labor  legislation.  Labor  legislation  in  the  United  States 
has   been  a  gradual   evolution   without   any   preconceived 


285]  THE  ADMINISTRATIVE   SYSTEM  1 39 

plan,  so  that  the  administrative  result  has  been  a  hopeless 
hodge-podge.  Under  the  influence  of  the  movement  for 
efficiency,  several  States  have  recently  completely  reorgan- 
ized their  labor  law  administrations  into  logical,  central- 
ized systems.  This  reorganization  is  precisely  what  Mary- 
land needs.  Civil  service  reform  would  work  wonders 
v/ith  that  vaguely  outlined  thing  which  has  up  till  now 
been  termed  the  Maryland  labor  department  or  labor  de- 
partments, but  to  obtain  real  efficiency  Maryland  should 
have  a  true  Labor  Department  embracing  all  the  adminis- 
trative agencies  enforcing  laws  throughout  the  State.  Such 
a  reform  would  involve  some  additional  expense,  but  ex- 
actly how  much  is  hard  to  calculate  because  there  would 
be  a  great  saving  in  the  elimination  of  overlapping  func- 
tions. Such  a  reform  would  place  some  additional  burden 
upon  the  legislature  which  initiates  it,  but,  in  establishing 
an  administrative  system  to  which  the  administration  of 
any  future  labor  law  might  in  a  few  words  be  referred,  it 
would  relieve  subsequent  legislatures.  The  investigating 
commissions  in  New  York  and  Illinois  have  recommended 
reorganization  of  this  kind,  and  sufficient  has  been  written 
about  it  to  enable  an  amateur  in  administration  to  suggest 
reforms  for  Maryland. 

The  reorganized  Maryland  Department  of  Labor  should 
be  presided  over  by  a  commissioner  or  commission  ap- 
pointed by  the  governor.  The  head  of  the  department 
should  be  the  only  position  filled  by  appointment.  His 
deputies,  if  there  are  any,  the  heads  of  the  various  bureaus, 
the  division  chiefs,  and  the  inspectors  would  be  selected  by 
the  merit  system.  In  this  way  the  English  administrative 
system  would  be  approximated,  that  is,  a  political  chief  with 
civil  subordinates.  If  sufficient  confidence  can  be  placed  in 
the  head  of  the  department,  he  should  be  given  the  power 
of  choosing  his  subordinates  from  a  list  of  qualified  appli- 
cants and  this  method  is  especially  applicable  to  the  chiefs 
of  bureaus  who  must  have  other  qualifications  than  those 
which  can  be  ascertained  by  examination.    Everything  pos- 


140 


THE   LABOR   LAW   OF    MARYLAND  [286 


sible  should  be  done  to  bring  about  a  condition  in  which 
the  head  of  the  department  will  be  fully  trusted ;  but,  if  he 
is  not,  appointment  to  all  subordinate  positions  should  be 
by  competitive  examination. 

The  Department  of  Labor  should  be  divided  into  six 
bureaus :  the  bureau  of  inspection,  the  bureau  of  statistics 
and  information,  the  bureau  of  arbitration  and  mediation, 
the  bureau  of  mines,  the  employment  bureau,  and  the  indus- 
trial accident  commission.  The  bureau  of  inspection  would 
be  the  most  important  of  these  and  it  might  be  feasible  in 
the  present  condition  of  the  labor  law  to  put  in  charge  of 
this  bureau  the  Commissioner  of  Labor  himself  with  the 
aid  of  a  deputy  if  necessary. 

The  bureau  of  inspection  should  be  divided  into  five  di- 
visions :  the  division  of  factory  inspection,  the  division  of 
home-work  inspection,  the  division  of  mercantile  inspection, 
the  division  of  steam  boiler  inspection,  and  the  division  of 
industrial  hygiene.  It  may  be  objected  that  this  subdivision 
is  too  minute  for  present  conditions  in  Maryland.  To  a 
certain  degree  the  objection  is  valid :  some  of  the  divisions 
may  have  little  to  do  and  one  man  may  be  sufficient  to  fill 
them.  This  plan,  however,  is  not  to  meet  present  condi- 
tions only,  but  is  to  furnish  a  basis  for  all  future  labor  leg- 
islation, and  we  may  be  sure  that  future  labor  legislation 
will  be  quantitatively  greater  than  in  the  past.  One  of  the 
first  duties  of  the  legislature  after  reorganizing  the  admin- 
istration should  be  to  make  some  of  the  local  laws  state- 
wide, for  in  the  main  they  seem  to  have  been  enacted 
locally  because  of  the  lack  of  state-wide  administrative 
agencies.  Now  the  inspectors  in  the  factory,  home-work, 
and  mercantile  divisions  will  all  enforce  practically  the 
same  laws.  The  divisions  will  be  upon  the  basis  of  places 
inspected  instead  of  laws  enforced,  and  every  inspector  will 
be  authorized  to  enforce  any  law  which  is  applicable  to  the 
establishment  which  he  is  visiting.  Moreover,  entire  au- 
thority to  enforce  the  laws  must  be  centralized  in  the  Labor 
Department  and  all  reference  to  local  authorities  must  be 


287]  THE  ADMINISTRATIVE  SYSTEM  I4I 

discontinued;  the  Labor  Department  must  be  made  self- 
sufficient.  Thus  practically  all  overlapping  will  be  elimi- 
nated. 

Of  sufficient  importance  to  be  entitled  to  special  mention 
is  the  division  of  industrial  hygiene,  copied  from  the  New 
York  division  of  the  same  name.^*  It  is  what  is  popularly 
known  as  a  bureau  of  "theorists,"  a  bureau  of  technical 
experts,  being  composed  in  New  York  of  a  physician,  a 
chemical  engineer,  a  mechanical  engineer  who  is  an  expert 
in  ventilation  and  accident  prevention,  and  a  civil  engineer 
who  is  an  expert  in  fire  prevention  and  building  construc- 
tion. The  duty  of  this  division  is  to  make  inspections  of  a 
highly  technical  nature,  to  make  independent  investigations 
upon  which  laws  and  orders  may  be  issued,  and  to  serve  as 
general  technical  advisors  to  the  department.  This  is  an 
expensive  division,  but  it  is  a  most  valuable  one.  It  would 
be  well  if  Maryland  could  copy  the  New  York  plan  in  its 
entirety,  but  that  is  not  a  necessity.  To  begin  with,  Mary- 
land would  need  at  least  one  physician  to  supervise  the  issu- 
ing of  child-labor  permits  and  the  inspection  of  food- 
producing  establishments.  The  mechanical  engineer  would 
be  a  valuable  adjunct  to  the  Industrial  Accident  Commis- 
sion and  the  State  Insurance  Fund. 

The  other  bureaus  are  less  important.  The  bureau  of 
statistics  and  information  should  have  the  same  functions 
that  that  bureau  originally  exercised ;  it  should  be  the  pub- 
licity bureau  of  the  department.  The  bureau  of  arbitration 
and  mediation  should  have  the  enforcement  of  the  law 
which  is  now  entrusted  to  the  State  Board  of  Labor,  to- 
gether with  the  enforcement  of  any  more  efficient  law 
which  might  be  enacted.  The  bureau  of  mines  should  be 
charged  with  the  enforcement  of  the  mining  law  in  the 
western  counties.  The  bureau  of  employment  should  be 
charged  with  the  establishment  of  free  employment  offices 
and  the  licensing  of  private  employment  offices.     The  In- 


24  New  York  Consolidated  Laws,  Ch.  31,  Art.  4,  Sec.  60,  as  amended 
in  1913.    Laws  1913,  Ch.  145. 


142  THE   LABOR   LAW   OF    MARYLAND  [288 

dustrial  Accident  Commission,  which  has  been  placed  as 
the  sixth  bureau  in  the  Labor  Department,  should  hold  a 
relation  to  the  department  entirely  different  from  the  other 
bureaus.  For  a  number  of  reasons  it  is  advisable  that  there 
be  some  connection  between  this  commission  and  the  rest 
of  the  department;  but,  owing-  to  the  importance  of  the 
commission  and  the  class  of  men  who  are  necessary  for  the 
adequate  administration  of  the  compensation  law,  it  is 
doubtful  if  the  commissioners  should  be  made  more  than 
nominally  subordinate  to  the  head  of  the  department  or  if 
they  should  be  chosen  in  the  same  manner  as  are  the  chiefs 
of  the  other  bureaus.  This  is  a  practical  question  calling 
for  fuller  discussion  than  can  be  given  it  here. 

The  question  whether  the  administrative  head  of  the 
Department  of  Labor  should  be  an  individual  or  a  commis- 
sion has  been  complicated  in  most  States  where  reorganiza- 
tion has  taken  place  by  questions  of  legislative  policy.  Most 
of  these  States  have  enacted  general  laws,  with  delegated 
authority  to  issue  specific  orders,  to  take  the  place  of  the 
detailed  and  intricate  laws  on  their  statute  books.  Enough 
has  already  been  said  of  the  advantages  of  this  mode  of  leg- 
islation both  from  the  substantive  and  the  administrative 
standpoint.  From  the  point  of  view  of  administration,  the 
elimination  of  all  discretion  in  the  individual  inspector  and 
the  substitution  of  the  educational,  helpful  attitude  for  the 
antagonistic,  prosecuting  frame  of  mind  are  advantages  so 
manifest  as  to  be  undeniable. 

For  purely  executive  work,  a  one-man  head  is  most  de- 
sirable, but  if  the  head  of  the  department  has  ordinance 
powers  some  sort  of  commission  is  a  logical  necessity.  Up 
to  the  present  time  there  have  been  devised  four  forms 
which  this  commission  might  take.  In  the  first  place,  the 
Wisconsin  plan  places  all  the  power,  executive  as  well  as 
administrative,  in  the  hands  of  a  commission  of  three,  an 
excellent  plan  in  most  respects,  but  it  has  not  been  followed 
and  has  been  much  criticised  because  of  the  weakness  in- 
herent in  the  division  of  executive  authority.    The  second 


289]  THE  ADMINISTRATIVE  SYSTEM  I43 

plan  is  the  New  York  scheme  adopted  in  1913  under  which 
there  is  a  single  executive  head,  the  commissioner,  and  an 
advisory  board  of  representative  men  and  women  not  subor- 
dinate to,  but  presided  over  by,  the  commissioner,  which  is 
empowered  to  draft  orders.  The  objection  urged  against 
this  plan  is  that  which  is  urged  against  all  part-time  boards, 
the  objection  of  inefficiency.  In  the  third  place,  a  slight 
variation  of  the  New  York  plan  is  advocated,  the  single 
executive  head  as  before,  but  a  commission  composed  of  the 
chiefs  of  bureaus.  This  is  open  to  the  serious  objection  that 
it  confers  independent  advisory  and  discretionary  functions 
upon  officers  who  are  administratively  subordinate  to  the 
head  of  the  department  and  who  are,  moreover,  civil  ser- 
vice appointees  with  technical  proficiency,  but  hardly  legis- 
latively representative.  The  final  plan  is  that  advocated 
by  the  Illinois  Efficiency  Commission  of  1914.  This  retains 
the  single  commissioner  and  associates  with  him  two  depu- 
ties, free  from  executive  duties  and  of  equal  rank  with  the 
commissioner  so  far  as  ordinance  power  is  concerned. 
Aside  from  the  possibility  of  friction,  the  overwhelming 
objection  to  this  scheme  is  the  useless  multiplication  of 
officers  for  an  administration  the  size  of  Maryland's. 

On  the  whole  it  would  seem  that  the  New  York  plan, 
which  has  been  adopted  in  a  modified  form  by  the  1916 
amendment,  is  best  adapted  to  the  needs  of  Maryland.  Be- 
sides the  commissioner,  the  board  is  composed  of  four  mem- 
bers, of  whom  it  is  advisable  that  one  should  be  an  em- 
ployer of  labor,  one  a  wage-earner,  one  a  physician  or  sani- 
tary engineer,  and  one  a  woman.  All  of  these  offices  should 
be  filled  by  appointment  by  the  governor  and  the  salaries 
should  be  large  enough  to  be  attractive  to  the  worthy  and 
the  influential.  For  the  conduct  of  its  business  the  board 
should  meet  once  or  twice  a  month  at  the  call  of  the  com- 
missioner. Besides  the  work  of  formulating  administrative 
ordinances,  the  commissioner  should  lay  before  the  board 
all  matters  in  which  any  policy  or  discretion  is  involved, 
except  as  the  exigencies  of  a  particular  case  may  call  for 


1^4  THE   LABOR   LAW   OF    MARYLAND  [29O 

immediate  action.  The  board  should  also  have  some  ad- 
visory power  in  the  choice  of  subordinates,  if  these  are 
selected  from  a  qualifying  and  not  from  a  competitive  ex- 
amination. In  general,  however,  except  in  the  matter  of 
formulating  ordinances,  the  board  should  be  merely  advis- 
ory to  the  commissioner,  for  administrative  responsibility 
must  be  centered  in  one  man  and,  in  the  last  resort,  the 
commissioner  himself  must  be  directly  responsible  to  the 
governor.  Centralization  and  discretionary  power  must 
always  be  balanced  by  responsibility. 

This  brief  outline  I  have  built  up  almost  entirely  inde- 
pendently of  the  1916  reorganization  of  the  Maryland  labor 
administration,  the  form  of  the  head  of  the  department  and 
the  centralizing  idea  being  the  only  similarities.  I  have  been 
forced  to  do  this  for  the  reason  that  the  1916  amendment, 
although  a  good  beginning,  failed,  like  all  pervious  legisla- 
tion, to  take  a  large  and  comprehensive  view  of  the  situa- 
tion. As  has  been  said,  by  failing  to  go  all  the  way  it  failed 
to  realize  many  of  its  possibilities.  Instead  of  looking  to 
the  future,  the  legislature  only  strove  to  correct  some  of 
the  defects  of  the  past,  and  accordingly  future  legislatures 
will  have  almost  as  much  difficulty  in  attaching  new  duties 
to  the  state  board  as  it  did  to  the  old  bureau.  The  plan 
presented  in  this  chapter  is  based  upon  scientific  investiga- 
tions conducted  in  the  most  advanced  States ;  and  while  no 
scheme  can  be  unalterable,  this  one  has  been  elaborated 
with  as  much  prevision  as  mankind  is  capable  of. 


CHAPTER  VIII 
The  State  in  Relation  to  Labor 

It  seems  rather  preposterous  after  the  description  of  the 
administration  of  the  Maryland  labor  law  given  in  the  last 
chapter  to  repeat  what  was  said  in  the  first  chapter,  that 
Maryland  is  an  average  American  State  so  far  as  its  labor 
law  is  concerned.  Yet  calmer  consideration  will  justify  this 
statement.  The  administration,  it  must  be  admitted,  is  in- 
ferior, though  the  system  of  administration  which  is  provided 
by  statute  might  be  made  comparatively  efficient.  Equally 
poor  are  the  safety  and  sanitary  inspection  laws  with  the 
exception  of  the  recent  sanitary  provisions  for  food  manu- 
facturing establishments.  Slightly  better  are  the  laws  regu- 
lating the  terms  of  employment  of  adult  men,  though,  it 
must  be  remembered,  these  laws  have  far  from  justified 
their  enactment.  The  other  provisions  of  the  labor  law  are 
above  the  average.  The  child  labor  law  and  the  workmen's 
compensation  law,  though  perhaps  capable  of  improvement, 
are  really  exemplary  pieces  of  legislation.  The  industrial 
disputes  act  and  the  other  laws  relating  to  the  labor  union 
are  almost  as  good  as  could  be  hoped  for.  The  women's 
ten-hour  law  ranks  lower  than  similar  laws  in  many  States, 
but  nevertheless  Maryland  is  above  the  average.  The  non- 
statutory law  of  the  labor  union,  while  not  ideal  and  not 
even  satisfactory  under  present  conditions,  is  in  absolute 
accord  with  the  best  legal  thought. 

In  spite  of  the  fact  that  Maryland  deserves  such  a  rank, 
a  general  survey  of  the  labor  law  is  likely  to  be  most  dis- 
appointing. The  labor  law  considered  as  a  whole  displays 
the  same  lack  of  system  that  was  evident  in  the  administra- 
tion of  that  law.  The  legislature  churns  out  haphazardly 
all  kinds  of  labor  law  and  when  the  student  tries  to  unearth 
lo  145 


146  THE    LABOR   LAW    OF    MARYLAND  [292 

some  maxims  or  some  philosophy  upon  which  the  legisla- 
tion is  based,  he  is  met  with  absolute  chaos.  Not  only  is 
this  chaos  present  in  the  legislative  enactments,  it  is  also 
only  too  evident  in  judicial  decisions.  Now,  we  could 
perhaps  excuse  the  legislatures  for  this  deficiency,  for  as 
our  state  legislatures  are  now  composed,  it  is  hardly  to  be 
expected  that  they  will  have  any  continuous  policy  of  legis- 
lation in  any  branch  of  state  activity ;  and,  in  respect  to  the 
labor  law,  they  respond  to  the  demands  of  their  constitu- 
ents just  in  proportion  as  the  proposed  measure  seems  a 
good  vote-getting  device.  But  the  courts  which  exercise 
a  great  influence  upon  all  social  legislation  through  their 
power  to  declare  laws  unconstitutional  have  no  such  excuse. 
They  have  endeavored  in  some  cases  to  throw  the  blame 
for  reactionary  decisions  upon  the  counsel  who  argued  be- 
fore them,^  but  this  excuse — to  use  their  own  language — 
though  perhaps  evidence  of  extenuating  circumstances  does 
not  detract  from  the  weight  of  the  ofifense. 

When  I  say  that  neither  the  courts  nor  the  legislature  act 
upon  any  consistent  philosophy  of  labor  legislation,  I  am,  in 
one  sense,  not  speaking  with  strict  accuracy.  The  legislatures 
do  still  act  as  they  always  have  acted  upon  the  theory  that 
laws  which  are  strenuously  demanded  by  a  great  number 
are  desirable,  and  the  courts  have  formulated  a  maxim  that 
legislation  must  be  for  the  welfare  of  the  general  public  and 
not  of  a  particular  class.  Neither  of  these  principles,  how- 
ever, is  specific  enough  as  a  basis  for  legislation.  More 
concretely  the  courts  from  time  to  time  have  acted  upon  the 
principle  that  those  labor  laws  are  proper  which  tend  to 
equalize  the  bargaining  powers  of  labor  and  capital  or  upon 
the  principle  that  the  legislature  should  only  enact  laws  safe- 
guarding the  public  health,  morals  or  safety ;  but  neither  of 
these  principles  has  been  iterated  consistently  enough  to  be 
called  a  philosophy  of  the  courts.  There  is,  then,  in  labor 
legislation  only  the  philosophic  principle  of  individuahsm 


N^Y^L^T*^^?^^  ^'  ^^^™^"'  ^44  111.  509;  People  v.  Schweinler,  S3 


293]  THE  STATE  IN  RELATION  TO  LABOR  I47 

dating  back  to  Jeremy  Bentham  as  modified  by  present  con- 
ditions in  the  direction  of  state  intervention.  But  when  it 
is  remembered  that  the  exceptions  to  the  individualistic 
principles  are  more  numerous  than  the  rule,  that  the  tend- 
ency is  towards  state  intervention  and  away  from  laissez- 
faire,  it  will  be  obvious  that  some  limitation  upon  state 
action  is  necessary  unless  individualism  is  gradually  to 
change  to  socialism.  There  has  as  yet  been  formulated  by 
legislature  or  court  no  such  limiting  principle  and  the  result 
is  a  confused  and  chaotic  mass  of  labor  laws  obeying  no 
definite  rule  of  the  relation  of  the  state  to  labor. 

In  attempting  to  outline  any  system  of  philosophy  of  labor 
legislation,  we  must,  to  conserve  energy,  use  as  many  prin- 
ciples of  existing  theories  or  systems  as  is  possible.  Not 
only  does  such  a  plan  conserve  energy,  but  it  also  commends 
itself  in  lending  greater  plausibility  to  the  new  scheme. 
Before  outlining  our  scheme,  therefore,  it  will  be  necessary 
to  extract  the  best  points  from  the  two  prevalent  philoso- 
phies of  state  activity,  laissez-faire  and  socialism. 

Laissez-faire,  as  has  been  said,  is  the  philosophy  of  com- 
plete inactivity  on  the  part  of  the  state.  Realizing  the  value 
of  individual  initiative,  the  believers  in  laissez-faire  advo- 
cated the  absolutely  unrestricted  development  of  this  vir- 
tue. So  sure  were  they  of  the  efficacy  of  this  quality  that 
they  were  content  to  conceive  the  welfare  of  the  state  as 
merely  the  sum  total  of  the  welfare  of  the  individuals 
composing  it.  Now  the  philosophy  of  individualism  is 
sound  in  so  far  as  it  accentuates  the  necessity  of  individual 
initiative  and  this  is  the  element  which  we  must  try  to 
preserve;  but  experience  soon  proved  that  its  corollary  of 
laissez-faire  was  an  impossible  solution  of  the  relation  of 
the  state  to  labor.  Laissez-faire  exalted  competition  with  a 
hope  of  weeding  out  the  unfit,  but  the  result  was  a  compe- 
tition between  classes  which  must  function  together  if  they 
are  to  attain  the  greatest  common  good.  Instead  of  com- 
petition weeding  out  the  unfit  and  raising  the  standards  of 
social  and  industrial  life,  unregulated  competition  lowered 


148  THE  LABOR  LAW   OF   MARYLAND  [294 

the  standards  to  the  basis  of  those  of  the  lowest  competitor. 
Not  only  did  the  individual  suffer,  but  the  community  and 
the  state  were  also  hurt  by  this  rampant  selfishness.  And 
the  state  suffers  both  from  the  individual  suffering  of  its 
citizens  and  from  the  torpidity  v^hich  this  philosophy  forces 
upon  it.  Individual  initiative  should  be  fostered,  but  selfish- 
ness must  be  carefully  repressed. 

As  a  reaction  against  this  theory  of  the  relation  of  the 
state  to  its  citizen,  there  came  into  being  the  political  phi- 
losophy of  socialism.  This  philosophy,  as  I  view  it — and 
there  are  almost  as  many  views  of  socialism  as  there  are 
socialists — is  the  result  of  the  theory  that  thinking  men 
"no  longer  hope  for  salvation  through  'the  free  play  of 
individual  interests,'  and  *  freedom  of  contract '  .  .  .  they 
are  apt  to  identify  the  cause  of  liberty  with  a  policy  of 
social  injustice.  .  ,  .  The  real  test  of  liberty  is  to  be  found 
less  in  the  form  of  government  or  in  the  number  of  laws 
that  control  the  action  of  the  citizen  than  in  the  extent  to 
which  the  citizen  is  assured  the  means  of  self-realization."' 
So  far  again  we  may  accept  the  tenets  of  this  theory,  but 
the  complete  socialistic  program  of  state  activity  goes  on 
to  advocate  at  the  least  the  socializatfon  of  all  the  means  of 
production.  That  is,  socialism  in  opposition  to  laissez-faire 
believes  in  the  most  intimate  intervention  of  the  state  in  the 
life  of  its  citizens,  intervention  extending  as  far  as  state 
control,  if  not  ownership,  of  all  the  factories,  land,  trans- 
portation, and  other  productive  agencies.  Socialism  by  the 
logical  development  of  its  fundamental  tenet  departs  quite 
as  completely  as  does  individualism  from  its  original  con- 
cept. Socialism  in  endeavoring  to  assure  to  the  citizen  the 
means  of  self-realization  by  a  complete  system  of  liberty- 
making  restrictions  ends  by  completely  stifling  individual 
initiative.  This  in  the  last  analysis  is  the  real  argument 
against  socialism;  it  involves  the  rule  of  a  bureaucracy  in 
political  and  industrial  affairs,  a  superabundance  of  laws 
which  inevitably  tend  to  deteriorate  in  quality  as  they  in- 

2  W.  Jethro  Brown,  Underlying  Principles  of  Legislation,  p.  57  ff. 


295]  THE  STATE  IN  RELATION  TO  LABOR  I49 

crease  in  quantity,  and  a  too  frequent  interference  of  the 
administrative  powers  of  the  state  in  the  life  of  the  citizen 
— all  this  at  the  expense  of  a  proper  encouragement  of  the 
vitally  necessary  individual  initiative.  If  a  socialism  could 
be  conceived  which  would  preserve  this  one  quality,  it  would 
be  desirable  in  spite  of  its  other  faults ;  but  so  far  no  such 
conception  has  been  formulated. 

We  can  then  begin  our  constructive  philosophy  upon 
these  two  fundamental  ideas  which  have  now  received 
rather  general  acceptance,  the  ideas  that  individual  initia- 
tive and  self-realization  must  be  stimulated  and  that  a 
proper  use  of  legislation  can  be  made  to  contribute  to  this 
end.  Individual  initiative  is  essential  to  progress,  but  in- 
dividualism untempered  by  state  interference  is  an  im- 
possible principle.  The  state  must  interfere  when  individ- 
ualism fails  to  achieve  the  greatest  common  good ;  but  the 
state  should  interfere  as  rarely  as  possible,  state  interven- 
tion should  be  always  the  secondary  consideration.  As 
Schaffle  says  of  the  need  of  state  intervention  in  the  protec- 
tion of  labor:  "It  [the  state]  only  steps  in  when  self-help 
and  mutual  help,  supplemented  by  ordinary  state  protec- 
tion, fail  to  meet  the  exigencies  of  the  situation,  whether 
momentarily  and  on  account  of  special  circumstances,  or  by 
the  necessities  of  the  case."^  The  state's  policy  of  inter- 
vention should  be  not  only  temperate,  but  as  far  as  pos- 
sible uniform.  That  is,  the  state  should  not  manifest  itself 
too  variously  in  dififerentiated  classes  of  laws,  but  should 
strive  to  specialize  its  activity.  One  of  the  causes  of  the 
failure  of  socialism  is  that  the  state  is  called  upon  to  at- 
tempt duties  too  diversified.  The  state  promotes  individual 
initiative  most  effectively  by  confining  itself  as  nearly  as 
possible  to  its  prime  duty  of  policing,  and  all  its  activity 
should  be  closely  related  to  this  fundamental  activity.  Its 
legislation  to  make  real  the  theoretical  liberty  which  the 
laissez-faire  philosophers  believed  in  should  be  legislation 
which  really  makes  the  individual  capable  of  caring  for  him- 

3  Schaffle,  Labor  Protection,  p.  11. 


I  50  THE   LABOR  LAW   OF   MARYLAND  [296 

self,  not  legislation  which  attempts  to  take  care  of  the 
individual. 

With  these  fundamental  principles  in  mind,  let  us  con- 
sider the  existing  labor  conditions.  We  have  traced  in  the 
first  chapter  the  varying  development  of  the  theories  of 
labor  l^w  and  it  was  pointed  out  that  not  until  the  last 
period  of  this  development,  the  period  of  laissez-faire  miti- 
gated by  legislation  in  favor  of  the  laborer,  was  the  labor 
problem  serious  enough  to  merit  activity  upon  the  part  of 
the  state  purely  in  solution  of  this  problem.  Moreover,  it 
was  there  also  shown  that  this  last  period  dated  from  soon 
after  the  Industrial  Revolution.  These  two  facts  are  not 
chance  concomitants ;  they  have  a  real  relation  to  the  prob- 
lem. Prior  to  the  Industrial  Revolution,  the  employer  and 
employee  were  in  intimate  personal  relation  to  each  other. 
The  employer  employed  few  men  and  usually  did  part  of 
the  manual  labor  himself.  He  usually  knew  the  conditions 
of  these  men  and  took  an  interest  in  their  welfare.  More- 
over, the  men  were  able  to  bargain  successfully  for  their 
own  welfare,  for  the  employee  had  almost  as  many  shops 
in  which  to  seek  employment  as  the  employers  had  occa- 
sions to  employ  workmen.  In  other  words,  the  business 
unit  was  so  small  that  the  individual  employer  had  no 
greater  monopoly  of  jobs  than  the  employee  had  of  work- 
ing ability.  After  the  Industrial  Revolution,  however,  one 
employer  employed  hundreds  and  thousands  of  workmen. 
Not  only  did  he  have  greater  experience  in  hiring  labor 
than  the  employee  had  in  seeking  work,  but  because  of  the 
magnitude  of  his  business  he  had  more  of  a  monopoly  of 
the  jobs  obtainable.  Briefly,  the  employer  had  what  the 
employee  wanted  most  of  all — work;  he  usually  was  not 
hard  put  to  it  to  get  what  the  employee  had — labor ;  he  was 
in  a  superior  economic  position  and  had  more  experience  in 
making  the  contract  of  employment.  The  individual  em- 
ployee was  practically  at  the  mercy  of  the  employer;  the 
employer  set  the  conditions  of  employment  and  the  em- 
ployee was  compelled  to  acquiesce  in  them. 


297]  THE  STATE  IN  RELATION  TO  LABOR  I5I 

As  an  offset  to  this  inequality  of  bargaining  power,  the 
workman  evolved  the  old  craft  gild  into  the  labor  union. 
By  thus  combining  the  individuals  in  a  particular  craft  into 
an  organized  whole  and  developing  one  of  the  members  into 
a  trained  bargainer,  the  employees  were  able  to  balance  the 
monopoly  and  the  experience  of  the  employer.  Collective 
bargaining  for  the  whole  union  was  substituted  for  the  in- 
dividual bargaining  of  the  single  employee.  But  this  solu- 
tion has  not  been  adequate.  It  was  because  unionism  was 
incomplete,  however,  not  because  it  was  ineffective,  that 
the  state  was  compelled  to  legislate.  The  state  soon  discov- 
ered that  it  had  to  interfere  in  the  labor  contract ;  absolute 
laissez-faire  was  not  feasible  under  a  factory  system  of  in- 
dustry and  an  unorganized  community  of  laborers.  The 
more  powerful  employer,  it  was  found,  used  his  power 
selfishly  to  the  detriment  of  the  state.  The  state  recognized 
the  inequality  of  the  bargaining  power  of  the  two  parties 
to  the  contract  and  stepped  in  to  remedy  the  effects  of  this 
inequality.  Would  it  not  have  been  better  to  have  reme- 
died the  inequality?  If  the  state,  instead  of  establishing 
certain  of  the  terms  of  the  labor  contract,  had  made  the 
employee  capable  of  establishing  these  terms  for  himself, 
its  task  would  have  been  much  simplified.  If  the  state  had 
legislated  to  make  equal  the  bargaining  power  of  the  two 
parties,  if  the  state  had  legislated  to  encourage  the  devel- 
opment of  collective  bargaining,  it  would  have  effected  per- 
haps, not  a  panacea,  but  a  much  greater  reform  than  any 
law  so  far  has  effected.  A  really  strong  labor  imion  as  a 
means  of  collective  bargaining  would  render  unnecessary 
much  of  the  ever-increasing  bulk  of  social  legislation.  To 
achieve  unionism  should  be  the  first  aim  of  state  activity. 

Experience  sustains  this  conclusion.  The  well-organized 
— I  might  even  say  the  organized — labor  union  asks  little 
of  the  state  except  legal  recognition  and  the  absence  of 
legal  persecution.  It  is  perfectly  reliant  upon  its  own  pow- 
ers. Through  its  control  of  labor  and  its  own  resources,  it 
is  enabled  to  withstand  the  natural  ascendancy  of  the  em- 


1^2  THE   LABOR   LAW   OF    MARYLAND  [298 

ployer  and  bargain  through  its  trained  agents  for  its  fair 
share  of  the  product.  It  is  within  the  scope  of  the  union's 
power  to  bargain  as  to  hours  of  labor,  wages,  days  of  rest, 
conditions  of  apprenticeship,  etc.  The  trade  union  as  a 
fraternal  organization  can  provide  for  out-of-work  bene- 
fits, sickness  insurance,  old-age  pensions,  and  the  like. 
What  is  more  important,  the  labor  union  can  better  care 
for  the  terms  of  the  employment  of  its  members  through 
its  bargaining  with  the  employer  than  the  state  could 
through  legislative  enactment,  for  the  labor  union  can  bet- 
ter recognize  the  local  and  incidental  variations  of  each 
trade  and  better  provide  for  them  in  its  terms  than  could 
the  state.  Thus  the  English  textile  workers  in  conjunction 
with  the  employers  maintain  expensive  experts  to  arrange 
sliding  scales  of  wages  and  hours  to  conform  to  various 
conditions  and  to  fix  new  terms  when  new  conditions  ar- 
rive.'* And,  furthermore,  with  respect  to  the  benefits,  the 
union  is  able  to  provide  more  efficient  administration  than 
the  state  could  because  of  its  more  intimate  connection  with 
the  recipients  of  the  premiums.  Together  with  the  strength 
and  numbers  of  the  central  and  federal  unions,  these  or- 
ganizations provide  a  much  subdivided  and  minutely  classi- 
fied administrative  device  for  the  amelioration  of  labor 
conditions.  This  must  be  considered  an  additional  argu- 
ment for  the  policy  of  noninterference,  which  indeed 
weighs  very  heavily  in  conjunction  with  individualistic 
reasoning.  In  these  fields  which  have  just  been  discussed 
the  labor  union  can  be  perfectly  efficient,  but  in  order  to 
be  efficient,  it  must  contain  practically  every  worker  in  its 
trade,  perhaps  an  entirely  impracticable  condition. 

The  labor  union,  however,  even  in  its  strongest  condition 
is  not  able  entirely  to  replace  the  state  in  looking  after  the 
welfare  of  the  laborer.  Certain  laws  must  still  be  enacted. 
The  state  must,  of  course,  legislate  with  reference  to  the 
labor  union  itself.     The  union  naturally  must  be  legalized 

4  See  Webb,  Industrial  Democracy,  for  a  description  of  this 
scneme  and  for  an  appreciation  of  its  workings  toward  amicable 
relations  between  labor  and  capital. 


299]  THE  STATE  IN  RELATION  TO  LABOR  153 

and,  as  will  be  seen,  aided  in  some  manner  before  it  can 
begin  its  function  as  efficient  competitive  bargainer,  for  the 
common  law,  especially  as  affected  by  early  English  labor 
legislation,  is  not  friendly  to  labor  unions.  In  other  re- 
spects, also,  amendment  of  the  common  law  will  be  neces- 
sary to  conform  this  inelastic  system  to  changing  industrial 
conditions.  The  workmen's  compensation  movement  is  a 
present  instance  of  this  branch  of  state  activity.  The  labor 
imion  could  inaugurate  schemes  of  accident  insurance  and 
some  unions  have  done  so;  but  under  the  common  law  of 
master  and  servant  a  scheme  of  accident  insurance  would, 
in  a  great  majority  of  industries,  become  most  expensive. 
The  state  alone  can  abrogate  the  doctrine  of  assumption  of 
risk  and  fellow-servant  negligence  and  ameliorate  or  abro- 
gate the  theory  of  contributory  negligence.  Most  impor- 
tant is  it  that  the  labor  union  should  bargain  for  and  help  to 
regulate  the  conditions  and  environment  of  employment. 
Certain  minor  provisions,  of  course,  the  unions  will  always 
stipulate  for,  but  conditions  of  sanitation,  fire-prevention, 
and  safety  appliances  are  beyond  the  scope  of  their  powers. 
In  the  framing  and  enforcement  of  such  provisions  expert 
knowledge  beyond  the  reach  of  unions  is  necessary;  and, 
moreover,  in  the  fundamentals,  a  uniformity  must  exist 
which  higgling  and  bargaining  from  their  nature  never 
can  procure.  Within  these  three  rubrics,  then,  the  legali- 
zation of  the  union,  the  correction  of  the  common  law, 
and  the  regulation  of  the  conditions  of  labor,  the  activity 
of  the  state  should  b6  contained ;  beyond  them  is  the  sphere 
in  which  the  state  should  act  only  in  aid  of  the  union  and 
in  furtherance  of  its  schemes.  In  this  way,  as  I  see  it, 
could  individual  initiative  be  encouraged  and  the  state  care 
best  for  the  general  welfare.  This,  in  other  words,  is  an 
ideal  system  of  state  activity. 

Accepting  provisionally  this  assumption,  the  possibility 
of  which  will  be  later  demonstrated,  that  labor  is  fully 
organized,  that  indeed  each  union  has  a  practical  monopoly 
of  the  workmen  in  its  trade,  the  question  presents  itself : 


154  THE   LABOR   LAW   OF   MARYLAND  [3OO 

Will  the  unions  become  so  strong  when  they  have  once 
been  brought  into  power  that  they  will  not  only  control  the 
capitalists  and  become  the  first  claimants  in  distribution, 
but  that  they  will  set  up  a  kind  of  inverted  autocracy  in 
which  the  union  leaders  represent  their  class  to  the  entire 
emancipation  of  the  capitalists  ?  Such  a  result  seems  some- 
what fantastic,  but  the  recognition  of  its  probability  leads 
to  profitable  speculation. 

In  the  first  place,  even  assuming  that  the  great  propor- 
tion of  laborers  are  unionists,  the  place  of  capital  in  the 
economic  and  social  system  would  still  be  an  important 
one;  and,  unless  communism  followed  unionism — and  this 
does  not  seem  probable  or  even  logical — the  class  of  capi- 
talists would  be  separate  from  and  necessary  to  the  work- 
ingmen.  Moreover,  when  unionism  is  at  its  highest  point, 
from  one-third  to  one-half  of  the  working  population,  farm 
laborers,  professional  men,  and  the  like,  are  engaged  in 
pursuits  in  which  unionization  is  impossible  or  tmnecessary. 
And  it  must  be  remembered  that  the  unorganized  portion 
of  the  population  will  still  include  the  professions,  the 
brains  of  the  country.  But,  in  all  this  discussion,  that 
which  must  struggle  for  completion  is  recognized  as  in  full 
bloom  before  any  resistance  or  restriction  is  organized.  Of 
course,  this  is  inconceivable.  With  the  advent  of  fully 
organized  labor,  there  will  develop  organizations  of  em- 
ployers after  the  nature  of  the  present  employers'  associa- 
tions to  combat  the  rising  menace  to  their  profits.  No  gov- 
ernment aid  will  be  needed  to  help  them  into  existence  and 
the  law  will  hardly  antagonize  them  as  imion  combatants 
so  long  as  they  restrict  themselves  to  agreements  concern- 
ing labor.  These  employers'  associations  will  also  approach 
to  a  monopoly,  a  monopoly  of  jobs,  and  there  will  be  then 
on  opposite  sides  two  aggressive  organizations,  each  seek- 
ing for  its  members  the  larger  share  in  distribution.  A 
battle  under  those  circumstances  is  inconceivable.  On  be- 
half of  the  consuming  public,  the  state  would  step  in  to 
effect  control  over  those  large  labor  questions  whose  inci- 


30l]  THE  STATE  IN  RELATION  TO  LABOR  I  5$ 

dental  variations  it  had  left  to  the  labor  union.  In  other 
words,  some  form  of  mediation,  arbitration  or  conciliation 
is  necessary. 

It  is  out  of  place  here  to  enter  into  any  detailed  discus- 
sion of  the  modes  of  amicable  settlement  of  labor  disputes. 
The  plan  called  for  here  is  some  kind  of  a  government 
commission  with  the  powers  of  one  of  the  present  minimum 
wage  commissions  to  settle  all  questions  of  terms  of  em- 
ployment which  the  agents  of  the  labor  union  and  employ- 
ers' association  cannot  agree  upon.  The  necessity  of  ap- 
pealing to  this  commission  and  accepting  its  awards  may, 
if  necessary,  be  made  compulsory  and  binding  upon  the 
acceptance  of  government  aid  by  the  unions.  Constitu- 
tional objections  will  be  raised,  but  we  must  sometimes 
remember  that  the  constitutions  are  not  the  last  word  in 
social  legislation  and  social  readjustment. 

There  are,  however,  certain  practical  questions  which 
have  been  slurred  over  in  the  previous  discussion,  but  which 
must  now  be  considered  in  all  their  glaring  baldness.  It  is, 
indeed,  one  of  the  drawbacks  of  philosophizing  and  theoriz- 
ing that  practicalities  always  constrain  one  to  justify  his 
theories.  Perhaps  that  is  why  there  is  such  a  paucity  of 
theories  in  the  world  and  so  many  "practical  men." 

In  the  first  place,  then,  it  has  been  assumed  that,  in  order 
to  guarantee  to  the  state  its  proper  place  in  the  amelioration 
of  social  conditions,  labor  has  become  completely  organized. 
"  The  success  of  a  union  in  enforcing  its  demands  depends 
upon  the  extent  to  which  it  has  control  over  the  labor  sup- 
ply in  its  particular  occupation,  since,  if  an  employer  is 
easily  able  to  fill  the  places  of  those  on  strike,  it  is  evident 
that  the  whole  movement  fails  in  its  purpose."^  It  has 
been  calculated,  however,  that  only  between  five  and  six 
per  cent  of  the  workers  of  the  country  are  organized,  and 
that  few  unions  control  half  the  laborers  in  their  crafts." 

5  Weyf  orth,  "  Organizability  of  Labor,"  in  Johns  Hopkins  Uni- 
versity Studies,  ser.  xxxv,  no.  2,  p.  146.  Much  of  the  following  has 
been  suggested  by  this  monograph. 

^  Wolman,  Extent  of  Organization  in  the  United  States,  MS. 


1^6  THE   LABOR  LAW   OF   MARYLAND  [302 

These  figures,  however,  exaggerate  the  problem  confront- 
ing us,  though  they  do  suggest  its  magnitude  and,  perhaps, 
the  fancifulness  of  the  project.  One  of  the  greatest  diffi- 
culties in  the  way  of  organizing  laborers  is  the  opposition 
of  the  employers  to  unionization.  This  is  a  natural  phe- 
nomenon of  competition,  but  it  seems  a  passing  one.  Its 
most  destructive  opponents  are  public  opinion  and  the 
growing  consciousness  among  employers  that  it  is  to  the 
benefit  of  each  employer  to  have  all  the  workers  in  his 
trade  organized.  For  only  then  is  the  employer  sure  that 
his  competitor  is  not  undercutting  with  cheap  labor,  and 
his  care  is  to  obtain  relative,  not  absolute,  cheapness  in  the 
elements  of  his  product.  This  problem,  however,  will  find 
its  own  cure;  legislation  in  its  nature  follows  as  well  as 
develops  public  opinion.  The  country  when  willing  to  ac- 
cept the  scheme  of  legislation  here  set  forth  will  present  a 
concerted  opinion  strong  enough  to  offset  the  opposition  of 
the  employers  to  unionization. 

A  more  serious  problem  confronting  the  organizer  of 
labor,  from  the  point  of  view  of  this  study,  is  the  apathy 
of  the  laborers.  This  manifests  itself  in  two  forms,  in  the 
apathy  of  the  individual  worker  in  an  organized  trade  and 
in  the  apathy  of  a  whole  trade  resulting  from  the  nature 
of  the  trade.  The  indifferent  worker  is  a  problem  for 
modern  unionism  which  the  unions  of  today  are  fast  learn- 
ing to  handle  successfully;  but,  in  the  eyes  of  a  scheme 
which  would  only  succeed  through  a  general  appreciation 
of  the  union  as  the  natural,  fixed  economic  phenomenon 
which  it  seems  to  be,  this  problem  sinks  into  insignificance. 
The  really  serious  difficulty  is  the  apathetic  trade,  the  trade 
which  seems  impervious  to  organization.  The  unskilled, 
floating  workers  because  of  their  great  number  and  the 
aimlessness  of  their  interest,  the  women  in  employment 
because  of  the  transitoriness  of  their  employment  and  be- 
cause they  look  to  marriage  rather  than  wages  as  a  means 
of  livelihood,  and  the  home-workers  because  the  scattered 
condition  of  the  employment  makes  enforcement  of  union 


303]  THE  STATE  IN  RELATION  TO  LABOR  1 57 

regulations  well-nigh  impossible  are  the  black  sheep  of  labor 
unionism.  That  a  stimulating  impulse  is  the  necessity  in 
the  case  of  the  unskilled  and  the  women,  that  these  classes 
are  not  impossible,  but  merely  difficult  to  organize,  is  dem- 
onstrated by  the  success  of  such  unions  as  the  stevedores 
and  hodcarriers  and  of  the  New  York  garment  workers' 
protocol.  The  home-workers,  if  the  law  is  content  that 
there  be  home-workers,  seem  conclusively  without  the  field 
of  unionism.  The  isolated  conditions  of  employment,  the 
private  nature  of  their  occupation,  make  impossible  such 
union  regulations  as  an  eight  hour  day,  standard  wages  or 
a  closed  shop.  But  this  is  not  fatal  to  the  argument  that 
the  unions  should  regulate  the  terms  of  employment,  for 
the  same  conditions  would  make  equally  impossible  an  effi- 
cient state  regulation  of  these  terms.  Except  as  to  the 
conditions  of  the  environment  of  employment,  which  under 
any  scheme  of  social  legislation  must  come  under  state  con- 
trol, the  home-workers  are  incapable  of  outside  regulation. 

Another  class  of  workers  who  are  not  well  organized  are 
those  who  labor  in  small  one-man  industries.  These  in- 
clude farm  laborers,  domestic  servants,  workmen  in  small 
country  shops,  and  the  workers  in  the  so-called  one-man 
shop.  The  organizing  condition  of  these  employments  is 
analagous  to  that  of  the  home-workers,  but  it  is  not  abso- 
lutely incompatible  with  organization,  as  is  evidenced  by 
unions  of  barbers  and  the  like.  The  labor  problem,  how- 
ever, in  these  industries  is  not  so  acute  as  in  the  larger 
centralized  employments,  for  the  laborer  is  in  intimate  rela- 
tion with  his  employer.  In  fact,  these  occupations  are  quite 
of  the  nature  of  the  early  forms  of  industry  when  no  labor 
legislation  was  enacted,  and  even  today  these  occupations 
are  often  omitted  from  labor  legislation.  Instead  of  en- 
hancing, these  workers  may  be  said  to  mitigate  our  problem. 

The  problem  then  is,  if  it  is  desirable  to  make  the  great- 
est possible  use  of  labor  unions  in  the  amelioration  of  labor 
conditions  and  if  it  is  desirable  to  establish  a  limit  to  state 
intervention  where  the  concerted  action  of  the  workingmen 


158  THE   LABOR    LAW    OF    MARYLAND  [3O4 

shall  work  out  their  own  salvation, — the  problem  then  is  to 
secure  almost  complete  organization  among  laborers.  Be- 
cause of  the  antipathy  of  the  employers  and  the  apathy  of 
some  laborers,  as  explained,  the  organizability  of  labor 
seems  to  stand  at  a  rather  low  level.  Public  opinion,  it  is 
true,  plays  a  large  part  in  determining  the  level  at  which 
the  labor  barometer  stands,  but  public  opinion  cannot  over- 
come all  the  obstacles  in  the  way  of  labor  organization. 
Active  help  must  be  furnished  from  the  outside.  It  is  here 
that  the  state  may  bargain  for  the  controlling  interest  in  the 
manipulation  of  trade  union  affairs  which  is  necessary  to 
amicable  settlement  of  industrial  disputes.  Two  modes  of 
state  aid  will  illustrate  the  kind  of  help  necessary  and  the 
problems  involved,  but  the  exposition  of  these  two  schemes 
must  not  be  accepted  as  exhaustive  of  the  methods  of  state 
aid. 

The  first  plan  for  state  aid  is  in  the  nature  of  financial 
encouragement.  One  of  the  main  weapons  of  organization 
is  the  beneficial  system  of  trade  union  insurance.  Not  only 
is  this  an  effective  lure  to  the  conservative  workman,  but  it 
is  one  of  the  chief  inducements  to  permanent  organization 
when  the  initial  stimulus  of  a  successful  strike  or  boycott 
has  spent  its  constructive  force.  Two  of  the  most  impor- 
tant of  these  benefits  are  out-of-work  and  sickness  benefits. 
The  state  could  contribute  to  one  of  these  and  make  the 
union  so  much  more  eiTective  by  its  aid.''  As  a  condition 
of  this  contribution,  the  state  could  stipulate  that  through 

^The  expense  of  this  scheme  would  not  be  great.  Taking  as  a 
typical  example  of  the  source  of  state  aid,  the  State  of  Maryland,  a 
fair  estimate  would  be  the  addition  of  three  and  one-fifth  cents  to 
the  tax  rate.  This  estimate  is  arrived  at  in  the  following  manner: 
The  working  population  of  Maryland  is  541,164  (Census  of  1910, 
Vol.  V,  p.  III).  Deducting  222,247,  the  number  of  farm-hands,  pro- 
prietors and  professional  men,  etc.,  the  total  number  of  organizable 
workers  at  a  generous  estimate  is  318,917.  The  average  per  capita 
cost  of  out-of-work  benefits  in  two  unions,  the  Cigar  Maker  and 
Typographic,  from  1900  to  1905  was  $3.55  (from  tables  in  Kennedy, 
Beneficiary  Features  of  Trade  Unions,  p.  91).  If  the  State  should 
contribute  30  per  cent  of  this  amount,  again  a  most  liberal  estimate, 
the  total  cost  for  Maryland  would  be  $329,647  or  3.2  cents  on  the  tax 
assessment  basis  of  1914. 


305]  THE  STATE  IN   RELATION  TO  LABOR  I  §9 

its  commission  or  board  of  arbitration  or  some  similar 
board,  it  should  have  intimate  control  over  the  affairs  of 
the  union.  This  scheme  would  have  to  meet  the  objections 
against  all  state  insurance  schemes ;  and  it  could  meet  them 
rather  effectively ;  but  none  of  these,  because  of  the  nature 
of  this  discussion,  is  important  to  dwell  upon  except  the 
question  of  constitutionality,  that  bugaboo  of  all  social 
legislation. 

Under  existing  state  constitutions,®  this  method  of  state 
aid  would  be  illegal ;  but  most  state  constitutions  are  easily 
and  often  amended  so  that  the  real  difficulty  lies  in  the 
relatively  staid  Federal  Constitution.  The  "  due  process  of 
law "  clause  interpreted  as  forbidding  state  taxation  for 
private  purposes  and  the  "  equal  protection  of  the  law " 
clause  of  the  Fourteenth  Amendment  as  usual  raise  their 
threatening  forms  in  the  path  of  this  legislation.  In  the 
first  place,  would  such  a  system  of  state  contribution  to 
union  benefits  involve  taxation  for  a  private  purpose? 

The  first  ground  upon  which  this  legislation  would  be 
sought  to  be  upheld  would  naturally  be  as  an  extension  of 
the  proper  state  function  of  poor  relief,  for,  in  taxation 
cases,  the  courts  lend  most  weight  to  the  historical  argu- 
ment. It  might  be  argued  that,  inasmuch  as  the  State  may 
relieve  its  poverty-stricken  citizens,  it  should  be  enabled 
to  grant  aid  as  a  preventative  of  those  conditions.  Now 
the  two  kinds  of  contributions,  of  which  one  is  advocated, 
are  both  directed  against  prime  causes  of  poverty,  the  sick- 
ness or  unemployment  of  the  wage-earner  of  the  family. 
The  argument  is  perfectly  sound  that  an  ounce  of  preven- 
tion is  worth  a  pound  of  cure,  but  the  majority  of  the 
courts  of  the  country  have  refused  to  be  guided  by  this 
proverb.®  State  relief,  it  has  been  generally  held,  can  only 
be  granted  to  those  absolutely  indigent.    At  least  one  court, 

^See,  e.  g.,  the  Maryland  Constitution,  Art.  Ill,  Sec.  34:  "The 
credit  of  the  State  shall  not  in  any  manner  be  given  ...  in  aid  of 
any  individual  association  or  corporation." 

^  See  Goodnow,  Social  Reform  and  the  Constitution,  chap.  7,  and 
cases  there  cited. 


l60  THE   LABOR   LAW   OF   MARYLAND  [306 

however,  has  taken  the  logical,  if  not  the  historical  and 
legal,  position  just  set  forth  and  has  upheld  a  preventative 
measure;^"  but,  except  as  an  entering  wedge,  this  opinion 
lends  little  encouragement  because  of  its  uniqueness. 

Driven  from  this  ground  by  the  conservatism  of  the 
courts,  it  is  more  profitable  to  consider  whether  the  State 
is  not  obtaining  for  itself  by  indirect  means  a  perfectly  valid 
advantage.  "  It  is  obvious  that  what  is  a  public  use  fre- 
quently and  largely  depends  upon  the  facts  and  circum- 
stances surrounding  the  particular  subject  matter  in  regard 
to  which  the  character  of  the  use  is  questioned."^^  It  is 
useless  to  quote  cases.  The  irreconcilable  differences  of 
the  opinions  makes  it  possible  to  quote  in  favor  of  either 
position.  Let  us  then  appeal  to  reason.  By  making  the 
nominal  expenditure  for  beneficiary  payments,  the  State 
saves  itself  the  cost  of  expensive  commissions  and  experts 
necessary  for  the  efficient  administration  of  this  part  of 
the  labor  law,  saves  its  legislators  endless  trouble  by  ren- 
dering unnecessary  a  great  multitude  of  enactments,  and 
exercises  an  interest  of  utmost  impwDrtance  in  maintaining 
amicable  relations  between  employers  and  employees,  in 
preventing  labor  wars.  The  state  takes  this  means  of  legis- 
lating with  respect  to  the  fundamentals  of  the  labor  ques- 
tion instead  of  striving  to  correct  the  deformity  of  modern 
industrial  life  by  attacking  merely  the  symptoms  and  out- 
growths of  the  inequalities  now  existing  between  labor  and 
capital.  The  State,  it  would  seem,  has  a  right  to  legislate 
in  this  manner  and  "it  is  established  by  a  series  of  cases 
that  an  ulterior  public  advantage  may  justify  a  compara- 
tively insignificant  taking  of  private  property  for  what,  in 
its  immediate  purpose,  is  a  private  use."^^ 

This  line  of  reasoning  also  makes  unnecessary  any  ex- 
tended reference  to  the  "equal  protection  of  the  law" 
clause.     All  unions  and  unionists  will  receive  similar  aid 

10  North  Dakota  v.  Nelson  Co.,  i  N.  D.  88. 

^1  Fallbrook  Irrigation  District  v.  Bradley,  164  U.  S.  112. 

^2  Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  and  cases  cited. 


307]  THE  STATE  IN   RELATION  TO  LABOR  I6I 

from  the  government,  and  everybody  will  be  able  to  secure 
this  aid  by  entering  a  union,  for,  in  fact,  to  secure  complete 
organizations  is  the  prime  motive  of  the  aid.  The  unions, 
through  governmental  insistence,  must  hold  themselves  open 
to  receive  any  worker  having  the  qualifications  of  the  trade ; 
and  the  State  must  stand  ready  to  extend  its  aid  to  all 
unions  coming  into  existence.  All  who  unionize  receive 
government  assistance  and  those  who  refuse  to  organize 
have  themselves  to  blame.  The  discrimination  between 
unionists  and  non-unionists,  in  reality,  amounts  to  very  little, 
and  this  discrimination  is  justified  by  the  end  to  be  attained. 

As  a  second  mode  of  state  encouragement  to  organiza- 
tion, a  scheme  lending  actual  assistance  to  the  establish- 
ment of  a  preferential  union  shop  in  the  several  industries 
is  suggested.  Little  argument  is  necessary  to  prove  that 
if  actual  preference  is  given  to  the  man  bearing  union  cre- 
dentials in  obtaining  the  open  job,  great  advantage  is  given 
to  the  union.  It  would,  perhaps,  be  too  difficult  to  attempt 
to  absolutely  enforce  a  closed  shop  or  even  a  preferential 
shop  by  legal  enactment,  but  any  aid  in  this  direction  would 
be  beneficial,  and  perhaps  sufficiently  beneficial  to  stimulate 
organization  among  the  apathetic  workers,  certainly  bene- 
ficial as  a  weapon  against  the  antipathetic  employers.  It  is 
not  necessary  to  suggest  a  typical  law,  but  it  would  be  in- 
teresting to  consider  the  constitutionality  of  a  law  similar 
to  that  which  has  been  passed  in  several  States  penalizing 
the  discharge  of  a  workingman  because  of  his  membership 
in  a  union  or  penalizing  an  employer  for  insisting  upon  an 
agreement  from  the  worker  not  to  join  a  union  during  his 
employment,  either  of  which  would  be  enforced  only  as  to 
unions  submitting  to  government  intervention  in  their  deal- 
ings with  the  employers. 

At  first  glance,  either  of  these  laws  would  seem  clearly 
unconstitutional  under  decisions  of  the  Supreme  Court  in 
the  Adair^'  and  Coppage  cases  ;^*  but  there  is  one  new 

"Adair  v.  United  States,  208  U.  S.  161. 
1*  Coppage  V.  Kansas,  236  U.  S.  i. 


1 62  THE  LABOR  LAW   OF   MARYLAND  [308 

feature,  government  control,  introduced  which  will  at  least 
weigh  in  the  direction  of  constitutionality,  and,  moreover, 
it  is  most  deferentially  submitted,  the  decisions  in  these  two 
cases  are  open  to  criticism.  Both  of  the  majority  opinions 
in  these  cases  were  written  by  the  conservative,  if  not  the 
reactionary,  justice  of  the  bench  and  both  of  them  are  rea- 
soned out  upon  eighteenth  century  notions  of  the  inviola- 
bility of  natural  rights.  The  Court  does  not  take  judicial 
cognizance  of  twentieth  century  conditions  as  affecting 
these  eighteenth  century  rights.  It  lays  aside  as  immaterial 
the  practical  inequality  of  the  employer  and  the  unorgan- 
ized worker  and  sees  no  possibility  of  coercion  in  the  mu- 
tual employment  agreements.  "  But  in  view  of  the  relative 
positions  of  employer  and  employed,"  asks  Justice  Day  in 
his  dissenting  opinion  in  the  later  case,  "  who  is  to  deny 
that  the  stipulation  [not  to  enter  a  union  during  employ- 
mient]  here  insisted  upon  and  forbidden  by  law  is  essentially 
coercive?"  It  is  useless  to  attack  at  any  greater  length 
these  decisions ;  the  dissenting  opinions  are  stronger  than 
anything  else  which  could  be  written.  The  proposed  laws, 
however,  can  be  held  constitutional  in  spite  of  these  two 
cases.  Not  only  would  the  State  be  attempting  to  aid  the 
unions  by  the&e  laws,  it  wotdd  be  fulfilling  a  purpose  of  its 
own  in  the  amelioration  of  inequitable  labor  conditions  and 
in  the  amicable  adjustment  of  labor  disputes.  The  unions 
would  take  on  the  nature  of  public  institutions;  and,  as 
the  Court  says  in  the  Coppage  case,  "if  they  were,  a  differ- 
ent question  would  be  presented  "  than  the  one  there  con- 
sidered. 

These  two  methods  of  state  aid  are,  then,  illustrative  of 
the  kind  of  legislation  needed  to  consummate  the  idealized 
condition  of  affairs  herein  assumed.  To  encourage  indi- 
vidual initiative  and  to  repress  selfishness  in  a  proper  pro- 
portion, so  that  both  the  individual  and  the  community 
may  prosper,  the  State's  first  duty  in  labor  legislation  is  to 
stimulate  unionization.  Until  complete  unionization  is  at- 
tained, the  State  may  hav€  to  legislate  in  fields  beyond 


309]  THE  STATE  IN  RELATION  TO  LABOR  1 63 

those  to  which  this  system  would  limit  it;  and  in  those 
fields  the  previous  chapters  of  this  study  have  sought  to 
lay  down  sound  standards  of  legislation.  When,  however, 
unionization  is  once  complete  and  with  it  have  come  into 
existence  the  employers'  associations,  the  State  will  be  able 
to  leave  most  of  the  terms  of  the  labor  contract  to  the  two 
parties,  itself  intervening  through  the  agency  of  the  gov- 
ernmental commission  only  on  the  rare  occasions  when  the 
public  welfare  seems  at  stake.  The  only  other  care  of  the 
State  will  be  to  keep  the  unwritten  law  up  to  date  and  to 
legislate  concerning  safety  and  sanitary  conditions.  Per- 
haps this  outline  seems  too  ideal,  but  in  that  it  is  like  all 
logical  philosophies — when  they  become  constructive  they 
necessarily  go  to  extremes  and  extremes  are  not  reason- 
able ;  only  the  mean  is  reasonable  and  that  is  not  logical. 


INDEX 


Accident.  See  Workmen's  Com- 
pensation Law. 

Accident  Fund,  65-66. 

Administration  of  labor  law, 
122  fi. 

Apprentices,  statute  of,  11. 

Arbitration,  compulsory  and  vol- 
untary, 41  flf. ;  publicity  method 
of,  42. 

Assumption  of  risk,  53,  71 

Attachments  and  liens,  116  ff. 

Barnett,  G.  E.,  47  (note). 
Bentham,  Jeremy,  147. 
Black-list,   uses    of,   33-35,    108, 

114. 
Board   for   Mothers'   Relief   for 

Baltimore  City,  119. 
Boycott,   22,   25 ;    secondary,  24, 

25,  .  29-30 ;     primary,     29-30 ; 

distinction     between     primary 

and  secondary,  30-32. 
Brandeis,  L.  D.,  loi   (note). 
Brown,  W.  Jethro,  148  (note). 
Bryan,  J.  W.,  20  (note). 
Bureau   of    Industrial    Statistics 

and  Inspection,  87,  98 
Bureau  of  Statistics  and  Infor- 
mation, 43-44,  123,  136. 

Canneries,  102. 

Child  Labor  Law,  99,   loi,   126, 

130-131. 
Child  welfare,  117,  119,  132. 
Civil  service  reform,  136  ff. 
Closed  shop,  22,  25 ;  methods  of, 

3<^38. 
Colfhing  Cutters'  Assembly,  25. 
Commission,  proposed,  77  ff. 
Common  law,   relation  to  labor 

law,   lo-ii;   of   contracts,  37; 

in    relation    to    compensation 

law,  75. 
Commons,  J.  R.,  78  (note),  79. 
Compensation.     See  Workmen's 

Compensation  Law. 
Conciliation,  41-45. 
Conspiracy,  law  of,  19,  20. 


Constitutional  provisions  in 
United  States,  relation  of,  to 
labor  law,  13-14. 

Contract,  freedom  of,  22. 

Contributory  negligence,  53,  71, 

153. 
Cooperative  Insurance  Fund,  46- 

48. 
Course  of  employment,  63  ff. 

Disability,  compensation  for, 

S8ff. 
Discharge  of  employees,  35. 
"Due  process  of  law"  clause,  14, 

153. 

Employers'     Associations,      154, 

Employers'  Liability  Case,  71. 

Employment,  conditions  of,  76 
ff. ;  terms  of,  94  ff. ;  prohibi- 
tions of,  96  ff.  See  hours  of 
labor,  sanitation,  fire  protec- 
tion, etc. 

Employment,  in  course  of,  63  ff. 

Employment  agencies,  126. 

Equal  protection,  159,  160. 

Factory    inspection    and    indus- 
trial registration  law,  126  ff. 
Fellow    servant    negligence,    53, 

71,  153. 
Fire    protection    and    suggested 

measures,  81-85. 
Fourteenth  Amendment,  14,  41 ; 

"  equal  protection  of  the  law  " 

clause  of,  159,  160. 
Freund,    Ernst,    48     (note),    55 

(note). 

Goodnow,  F.  J.,  129  (note). 

Harlan,  H.  D.,  74  (note). 
Health,   State   Board  of,   89-90, 

123,  133-135- 
Herkner,  Anna,  83  (note). 
Holmes,  Justice,  14,  36,  71. 
Home-work,  90-93. 


164 


3iO 


INDEX 


165 


Hours  of  labor,  for  women  and 
children,  100-103,  126,  13a; 
for  men,  103-104. 

Industrial  Accident  Commis- 
sion, State,  65,  67-70,  85,  123, 

135. 

Injunctions,  30. 

Insurance,  158-161.  See  Work- 
men's Compensation  Law. 

Interlocking  directorates,  no. 

Label,  union,  39-41. 

Labor,    disputes,    settlement    of, 

155. 

Labor,  State  in  relation  to,  145  flf. 

Labor  and  Statistics,  State 
Board  of,  44,  87,  91-92,  123  ff. 

Labor  Day,  121. 

Labor  Department,  need  of 
Maryland  for,  139  ff . 

Labor  law,  definition  of,  9;  dif- 
ferentiation of,  from  common 
law,  10 ;  character  of  early,  n- 
12,  20. 

Labor  union,  19  flf. 

Laborers,  Statute  of,  il. 

Laissez-faire,  relation  of  doc- 
trine to  labor  law,  11-12,  ^^, 

147. 

Leiserson,  W.  M.,  126  (note). 

Liability,  employers.  See  Work- 
men's Compensation  Law. 

License  laws,  113  flf.,  115-116. 

Liens,  116. 

Living  wage,  105. 

Lucke  V.  Clothing  Cutters'  As- 
sembly, 25. 

Luman  v.  Kitchens,  in. 

Malice,  22. 

Martin,  W,  A.,  23  (note),  40 
(note). 

Maryland  Court  of  Appeals,  14; 
on  criminal  conspiracy,  20. 

Maryland  Labor  law,  compara- 
tively considered,  16-17;  his- 
torically considered,  19-20 ;  ad- 
ministrative system  of,  122 
ff. ;  suggestions  for  reforms 
in,  136  ff. 

Mechanics'  liens,  116  flf. 

Minimum  wage  law,  104-106. 

Mothers'  pensions,  118. 

My  Maryland  Lodge  v.  Adt,  23- 
24,  28,  30. 


Negligence,  contributory,  53,  71, 
153- 

Occupational  diseases,  64. 

Picketing,  25,  27-29. 

Pickett  v.  Walsh,  26. 

Police  power,  72. 

Public    employment,    terms    of, 

1 19-120. 
Pure  Food  and  Drugs  Act,  134. 

Relief  fund,  49. 
Restraint  of  trade,  37. 
Risk,  assumption  of,  53,  Ti. 
Rubinow,  J.  M.,  53  (note). 

Safety    and    sanitary    measures, 

8sff. 
Sanitary  Inspection  Law,  89-90, 

133-135. 

Sanitation,  86,  129.  See  Health, 
State  Board  of. 

Schaflfle,  A.,  149. 

School  attendance,  118. 

Second  Employers'  Liability 
Case,  71. 

Shaffer  v.  Union  Mining  Com- 
pany, no. 

Socialism,  148-149,  150. 

State  Accident  Fund,  65-66. 

State  aid  to  trade  unions,  in- 
surance, 158-161 ;  preferential 
union  shop,  161 ;  constitution- 
ality of,  161-162. 

State   Board   of    Health,   89-90, 

123,  133-135-  ,  ^ 

State  Board  of  Labor  and  Sta- 
tistics, 44,  87,  91-92;  adminis- 
tration and  duties  of,  123  ff. 

State  employment,  119  ff. 

State  Industrial  Accident  Com- 
mission, 65,  67-70,  85,  123, 135. 

State  v.  Potomac  Coal  Com- 
pany, III. 

Statute  of  Apprentices,  Eliza- 
bethan, II. 

Statute  of  Laborers,  11. 

Strike,  object  of,  22  ff.,  38;  sym- 
pathetic, 24;  when  legal  in- 
strument, 24. 

Sunday  Rest  Law,  121. 

Supreme  Court,  on  discharge  of 
union  employees,  35. 

Sympathetic  strike,  24. 


I 66                                                     INDEX  [312 

Tenement  law,  90-93.  Wages  of  labor,  104  ff. 

Tort,  law  of,  74-  "Waiting  period,"  61. 

Trade    union,    development    of  Webb,  Sidney,  152  (note). 

law   of,    in    Maryland,    19-23;  Weyforth,  W.  O.,  155  (note). 

statutes     relating     to,     39-41 ;  Willner  v.  Silverman,  35. 

aims  of,  151-153;  state  aid  to,  Wolman,  Leo,  155  (note). 

158-161.  Women's  ten-hour  law,  102, 126, 

Truck    system,    107  ff.;    history  132. 

of,  in  Maryland,  109  ff.  Workmen's    Compensation    Law 

Typographical    Union,    Interna-  of  Maryland,  history  of,  46  ff.; 

tional,  41.  compared    with    other    similar 

laws,    56  ff. ;     constitutionality 

Union  label,  39-41.  of,  70  ff.;   effects  on  common 

Union  labor,  19  ff.  law,  74,  125. 
L'nion  shop,  161. 


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The  Political  Works  of  James  I 

HARVARD  POLITICAL  CLASSICS  I 

WITH  AN  INTRODUCTION 
BY 

CHARLES  HOWARD  McILWAIN 
Professor  of  History  and  Government  in  Harvard  University 

cxi  +  354  pages.    $4.00. 

In  presenting  students  of  political  science  with  a  new  edition 
of  the  Political  Works  of  James  I,  Professor  Mcllwain  has  pro- 
ceeded upon  the  assumption  that  a  bare  outline  of  mere  anatomy 
of  the  political  thought  of  a  distant  age  is  not  sufficient  for  a  scholar. 
The  thorough  student  needs  above  all  to  gain  somehow,  an  appre- 
ciation of  the  whole  political  mind  of  a  period.  He  must  become 
accustomed  to  the  "  intellectual  climate  "  in  order  to  gain  a  real  and 
sympathetic  appreciation  of  past  thought.  There  is,  after  all,  no 
road  to  this  goal  except  the  old-fashioned  study  of  contemporary 
writers  in  extenso. 

The  present  volume  opens  with  the  "  Basilikon  Doron,"  in  which 
King  James  laid  down,  for  the  benefit  of  his  son  Prince  Henry, 
his  most  careful  thought  in  regard  to  a  king's  duty  towards  God,  in 
his  office,  and  in  private  life.  This  is  followed  by  "  The  Trew  Law 
of  Free  Monarchies,"  "An  Apologie  for  the  Oath  of  Allegiance," 
"A  Premonition  to  all  Christian  Monarches,  Free  Princes  and 
States,"  "  A  Defence  of  the  Right  of  Kings,  against  Cardinall  du 
Perron,"  "  Speech  of  1603-1604."  "  Speech  of  1605,"  "  Speech  of 
1607,"  "  Speech  of  1609-1610,"  "  Speech  in  the  Star  Chamber, 
1616."  For  the  general  purpose  intended,  it  was  deemed  inadvis- 
able and  unnecessary  to  cumber  this  text  with  variant  readings  or 
even  with  explanatory  notes. 

To  orient  the  student,  however,  in  his  study  of  the  period,  the 
editor  has  provided  an  introduction  of  about  one  hundred  pages,  in 
which  he  first  discusses  the  rise  and  growth  of  the  "Anglican 
Schism "  and  the  development  of  political  ideas  accompanying  it. 
This  study  clears  the  ground  for  a  consideration  in  chapter  two  of 
the  political  philosophy  of  James  I,  which  was  summed  up  in  the 
doctrine  of  the  Divine  Right  of  Kings.  Four  Appendices  discuss 
the  Tudor  literature  on  Church  and  State,  Cowell's  "  Interpreter," 
James  and  the  Puritans,  and  the  writings  of  Robert  Parsons.  A 
complete  bibliography  directs  the  student  to  important  contemporary 
and  modern  works  connected  with  the  general  field.  A  compre- 
hensive index  makes  both  Introduction  and  text  readily  accessible. 

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Early  Diplomatic  Relations 

BETWEEN 

the  United  States  and  Mexico 

By  WILLIAM  R.  MANNING,  Ph.D. 
Adjunct  Professor  of  Latin-American  History  in  the  University 

of  Texas 

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This  volume  is  based  on  a  series  of  lectures  delivered  at  the 
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Mexico.  

Early  Diplomatic  Relations 

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the  United  States  and  Japan 

1853=1865 
By  PAYSON  J.  TREAT 

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Junior  University 

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now  the  United  States  was  the  principal  neutral  power  in  a  war  which  in- 
volved all  Europe.  The  causes  of  the  War  of  1812  are  clearly  set  forth.  The 
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treaty  are  examined  as  well  as  the  questions  in  dispute  which  were  omitted, 
and  which  continued  to  disturb  the  relations  of  the  two  countries  for  many 
years.  In  the  concluding  chapter  each  of  these  disputed  questions  is  traced  to 
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of  1798-1813 

A  Study  in  American  Diplomacy 

By  ISAAC  JOSLIN  COX 

Aatooiate  Profeaser  of  HUtory.  Unirarsity  of  Cincianati 

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lems  in  American  history,  and  Professor  Cox  has  spared  no  pains 
in  searching  for  new  sources  of  information.  He  has  not  only 
availed  himself  of  the  collections  in  Washington  and  of  the 
material  in  the  Department  of  Archives  and  History  at  Jackson, 
Mississippi,  but  he  has  personally  searched  the  Archives  at  Seville 
and  Madrid. 

The  volume  deals  with  the  secret  intrigues  of  statesmen  and  J 
diplomats  in  the  capitals  of  America  and  Europe  on  the  one  hand, 
and  with  the  aggressive,  irresponsible  movements  of  impatient 
frontiersmen  on  the  other.  Professor  Cox  thinks  that  the  sturdy 
pioneers  of  the  Southwest  outstripped  the  diplomats,  and  that 
their  deeds  were  the  decisive  factors  in  the  settlement  of  the  long 
and  bitter  controversy  that  was  waged  over  West  Florida. 


THE  JOHNS  HOPKINS  PRESS 

BALTIMORE,  MARYLAND 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  964  631    6 


